Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and Canada (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is ~~the first business day~~ 30 days after the ~~Closing Date~~date hereof, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the ~~Representatives~~Representative. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, , (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 2 contracts

Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 2 contracts

Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. ~~The Issuers, jointly and severally, agree~~ Each of the Issuers hereby agrees -------------------------- with ~~each Underwriter~~ the Initial Purchasers as follows: (a) ~~The Company will comply fully and in a timely manner with~~ To advise the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you Initial Purchasers promptly and, if requested by ~~you~~the Initial Purchasers, ~~will~~ confirm such advice in writing: , (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 ~~any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or of the suspension of~~ exemption from qualification of ~~the Securities~~ any Series A Debentures for offering or sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation ~~or the threatening~~ of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose ~~or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act;~~ and (vii) ~~within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or~~ of the happening of any ~~event, which~~ event during the period referred to in Section 5(c) below that makes any statement of a material fact made in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Offering Memorandum or the ~~Prospectus (as then amended or supplemented)~~ Offering Memorandum untrue or ~~which~~ that requires ~~the making of~~ any additions to or changes in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Offering Memorandum or the ~~Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary~~ Offering Memorandum in order to make the statements therein not misleading. The Issuers shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Series A Debentures under any state securities or Blue Sky laws and, ~~or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If~~ if at any time any ~~stop~~ state securities commission or other federal or state regulatory authority shall issue an order suspending the ~~effectiveness~~ qualification or exemption of ~~the Registration Statement~~ any Series A Debentures under any state securities or ~~any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued~~Blue Sky laws, the Issuers ~~will promptly~~ shall use their best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (cb) ~~The~~ To furnish the Initial Purchasers and those persons identified by the Initial Purchasers to the Issuers ~~will furnish to you, without charge, (i) five copies of the registration statement~~ as ~~originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of~~ many copies of the Preliminary ~~Prospectus~~Offering Memorandum and the Offering Memorandum, ~~each Issuer Free Writing Prospectus~~and any amendments or supplements thereto, as the Initial Purchasers may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchasers' compliance with its representations and warranties and agreements set forth in Section 7 hereof, the ~~Prospectus~~ Issuers consent to the use of the Preliminary Offering Memorandum and the Offering Memorandum, and any ~~amendment or supplement~~ amendments and supplements thereto ~~as you may reasonably request~~required pursuant hereto, ~~(iii) such number of copies of~~ by the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated DocumentsInitial Purchasers in connection with Exempt Resales. (dc) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for During such period as in the opinion of counsel for the ~~Underwriters a prospectus~~ Initial Purchasers and the Issuers an Offering Memorandum is required by ~~the Act~~ law to be delivered in connection with ~~sales~~ Exempt Resales by ~~any Underwriter or any dealer~~the Initial Purchasers, ~~the Issuers will expeditiously deliver~~ (i) not to ~~the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of~~ make any amendment or supplement ~~thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent~~ to the ~~use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use~~ Offering Memorandum of which ~~is permitted hereby~~the Initial Purchasers shall not previously have been advised or to which the Initial Purchasers shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable request, ~~and the Prospectus (and of~~ any amendment or supplement ~~thereto) in accordance with~~ to the ~~provisions of the Act and with the securities or blue sky laws of the jurisdictions in~~ Offering Memorandum which ~~the Securities are offered by any Underwriter and by all dealers to whom Securities~~ may be ~~sold, both~~ necessary or advisable in connection with ~~the offering and sale of the Securities and, in the case of the Prospectus, for~~ such ~~period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer~~Exempt Resales. (1d) If If, during the period ~~of time~~ referred to in ~~paragraph (e~~Section 5(c) ~~above~~ above, any event shall occur or condition shall exist as a result of which, in the ~~judgment~~ opinion of counsel to the ~~Issuers or~~ Initial Purchasers and the ~~Underwriters~~Issuers, it becomes necessary to amend or supplement the ~~Prospectus~~ Offering Memorandum in order to make the statements therein, in the light of the circumstances when ~~the Prospectus~~ such Offering Memorandum is delivered to ~~a purchaser~~an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchasers and the Issuers, it is necessary to amend or supplement the ~~Prospectus~~ Offering Memorandum to comply with ~~the Act or~~ any ~~other~~ applicable law, ~~the Issuers will~~ forthwith to prepare ~~and, subject to the provisions of paragraph (d) above, file with the Commission~~ an appropriate amendment or supplement to ~~the Prospectus~~ such Offering Memorandum so that the statements ~~in the Prospectus~~therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that ~~the Prospectus~~ such Offering Memorandum will comply with applicable law, and to furnish to the ~~Underwriters~~ Initial Purchasers and to such ~~dealers~~ other persons as ~~you shall specify~~ the Initial Purchasers may designate such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers Initial Purchasers may reasonably request. (ge) ~~The Issuers will~~ Prior to the sale of all Series A Debentures pursuant to Exempt Resales as contemplated hereby, to cooperate with ~~you~~ the Initial Purchasers and ~~with~~ counsel ~~for~~ to the ~~Underwriters~~ Initial Purchasers in connection with the registration or qualification of the ~~Securities~~ Series A Debentures for ~~offering~~ offer and sale by to the ~~Underwriters~~ Initial Purchasers and ~~by dealers~~ pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as ~~you~~ the Initial Purchasers may ~~designate~~ request and ~~will~~ to continue such registration or qualification in effect so long as required for Exempt Resales and to file such consents to service of process or other documents as may be necessary ~~or appropriate~~ in order to effect such registration or qualification; provided, however, that the Issuers shall not be required in ~~no event shall any Issuer be obligated~~ 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 ~~which~~ 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 Securities~~Exempt Resales, in any jurisdiction ~~where~~ in which it is not now so subject. (hf) ~~The Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date~~ So long as any of the ~~Prospectus~~ Series A Debentures remain outstanding and ~~ending~~ during any period in which the Issuers are not ~~later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of~~ subject to Section ~~11(a~~13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), ------------ to make available to any holder of Series A Debentures in connection with any sale thereof and any prospective purchaser of such Series A Debentures from such holder, the information ("RULE 144A INFORMATION") required by Rule ~~158 thereunder, and will advise you in writing when such statement has been made available~~144A(d)(4) --------------------- under the Act. (ig) ~~During~~ Whether or not the ~~period~~ transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of ~~five years hereafter,~~ the obligations of the Issuers ~~will furnish to you as soon as available~~under this Agreement, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to including: (i) the fees, disbursements and expenses of counsel to the Issuers and accountants of the Issuers in connection with the sale and delivery of the Series A Debentures to the Initial Purchasers and pursuant to Exempt Resales, and all other fees and expenses in connection with the preparation, printing, filing and distribution ~~under the Act~~ of the ~~Registration Statement (including financial statements and exhibits)~~Preliminary Offering Memorandum, the Offering Memorandum and all amendments and supplements ~~thereto prior~~ to ~~or during~~ any of the ~~period~~ foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by it in the quantities specified ~~in paragraph (e) above~~herein, (ii) all costs and expenses related to the ~~preparation~~ transfer and delivery of the ~~Indenture~~Series A Debentures to the Initial Purchasers and pursuant to Exempt Resales, ~~the issuance of the Notes and the fees of the Trustee~~including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the ~~printing~~ other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery ~~(including postage, air freight charges and charges for counting and packaging) of such copies~~ of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above~~Series A Debentures, (iv) ~~the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and~~ all ~~other agreements, memoranda, correspondence and other documents printed and delivered~~ expenses in connection with ~~the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v)~~ the registration or qualification of the ~~Securities~~ Series A Debentures for offer and sale under the securities or Blue Sky laws of the several states and ~~Canada~~ all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including ~~in each case~~ the ~~reasonable~~ filing fees and fees and disbursements of counsel for the ~~Underwriters relating to~~ Initial Purchasers in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Series A Debentures, (vi) ~~filings~~ all expenses and ~~clearance with the Financial Industry Regulatory Authority~~ listing fees in connection with the ~~offering~~ application for quotation of the Series A Debentures in the National Association of Securities Dealers, Inc. (~~including the reasonable fees and disbursements of counsel for the Underwriters relating thereto~~"NASD") Automated Quotation System - PORTAL ---- ("PORTAL"), (vii) the ~~listing, if any,~~ fees and expenses of the ~~Securities on any national securities exchange~~ Trustee and ~~(viii) furnishing such copies of~~ the ~~Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use~~ Trustee's counsel ------ in connection with the ~~offering or sale~~ Indenture and the Debentures, (viii) the costs and charges of any transfer agent, registrar and/or depository (including DTC), (ix) any fees charged by rating agencies for the rating of the ~~Securities by~~ Debentures, (x) all costs and expenses of the ~~Underwriters or by dealers~~ Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement, and (xi) and all other costs and expenses incident to ~~whom Securities may be sold~~the performance of the obligations of the Issuers hereunder for which provision is not otherwise made in this Section. (mh) ~~The~~ To use its best efforts to effect the inclusion of the Series A Debentures in PORTAL and to maintain the listing of the Series A Debentures on PORTAL for so long as the Series A Debentures are outstanding. (i) To obtain the approval of DTC for "book-entry" transfer of the Debentures, and to comply with all of its agreements set forth in the representation letters of the Issuers ~~will not during~~ to DTC relating to the approval of the Debentures by DTC for "book-entry" transfer. (j) During the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, not to offer, sell, contract to sell or otherwise transfer or dispose of any debt securities of ~~any of the Issuers~~ either Issuer or any warrants, rights or options ~~or other rights~~ to purchase or otherwise acquire debt securities of ~~any of~~ either Issuer substantially similar to the ~~Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers~~ Debentures (other than (i) the ~~Securities~~Debentures, (ii) any guarantee of either Issuer of any indebtedness of Xxxxxxx Xxxxx Rental Holdings, L.P. or Xxxxxxx Xxxxx Rental Holdings Capital Corporation, and (iii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Initial Purchasers. (k) 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 Series A Debentures to the Initial Purchasers or pursuant to Exempt Resales in a manner that would require the registration of any such sale of the Series A Debentures under the Act. (l) Not to voluntarily claim, and to actively resist any attempts to claim, the benefit of any usury laws against the holders of any Debentures. (m) To comply with all of its agreements set forth in the Registration Rights Agreement. (n) ~~The Issuers will~~ To use ~~their~~ its best efforts to do and perform all things required or necessary to be done and performed under this Agreement by ~~the Issuers~~ it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the ~~Securities~~Series A Debentures. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 2 contracts

Samples: Purchase Agreement (Anthony Crane Holdings Capital Corp), Purchase Agreement (Anthony Crane Sales & Leasing Lp)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is ~~the first business day~~ 30 days after the ~~Closing Date~~date hereof, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the ~~Representatives~~Representative. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 2 contracts

Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or ~~supplement thereto as you may reasonably request~~sup plement thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, , (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee and Original Trustee, (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and Canada (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is ~~the first business day~~ 30 days after the ~~Closing Date~~date hereof, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; ~~provided~~PROVIDED, ~~however~~HOWEVER, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post- effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; ~~provided~~PROVIDED, ~~however~~HOWEVER, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the ~~date~~ of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and ~~will~~ to advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the ~~common stock of the Company~~ Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, ------------------------- agree with ~~each Underwriter~~ the Underwriters as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by ~~any Underwriter~~ the Underwriters or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any Underwriter~~ the Underwriters and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any Underwriter~~ the Underwriters or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably ~~request and (2) if at any time prior to~~ request. In the ~~Time of Sale (i) any~~ event ~~shall occur or condition shall exist as a result of which, in the judgment of~~ that the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so and you agree that the ~~statements in the Time of Sale Information, as so~~ Prospectus should be amended or supplemented, the Issuers, if requested by you, will ~~not, in~~ promptly issue a press release announcing or disclosing the ~~light of~~ matters to be covered by the ~~circumstances when it is so delivered, be misleading,~~ proposed amendment or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably requestsupplement. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no -------- ------- event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the ~~Prospectus~~ Registration Statement is declared effective by the Commission (the "Effective --------- Date") and ending not later than 15 months thereafter, as soon as ---- practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and ~~will~~ to advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the ~~common stock of the Company~~ Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the ~~Securities~~ Notes in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the ~~Securities~~ Notes to facilitate the sale or resale of the ~~Securities~~Notes. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ~~the Representatives~~Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the ~~Securities~~Notes. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, ------------------------- agree with ~~each Underwriter~~ the Underwriters as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably ~~request and (2) if at any time prior to~~ request. In the ~~Time of Sale (i) any~~ event ~~shall occur or condition shall exist as a result of which, in the judgment of~~ that the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so and you agree that the ~~statements in the Time of Sale Information, as so~~ Prospectus should be amended or supplemented, the Issuers, if requested by you, will ~~not, in~~ promptly is- sue a press release announcing or disclosing the ~~light of~~ matters to be covered by the ~~circumstances when it is so delivered, be misleading,~~ proposed amendment or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably requestsupplement. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by ~~the Underwriters~~ any Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be -------- ------- obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by ~~the Underwriters~~ any Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of each of the ~~Representatives~~Underwriters. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made availablesettlement through The Depository Trust Company. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) 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; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any fees payable in connection with the rating of the Securities ~~on any national securities exchange~~ with the ratings agencies; and (~~viii~~xii) ~~furnishing such copies~~ all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). (j) During the Prospectus Delivery Period, the Issuers will not, without the prior written consent of the ~~Registration Statement~~Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the ~~Preliminary~~ Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, the electronic road show dated September 2020 and any other electronic road show and road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus, .” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, ~~the Prospectus and all amendments and supplements thereto as may be requested for use~~ including in ~~connection~~ respect of timely filing with the ~~offering or sale~~ Commission, legending and record keeping. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of the ~~Securities~~ 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), directly or indirectly, including the ~~Underwriters~~ 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 debt securities issued or guaranteed by ~~dealers~~ such Issuer (other than the Securities) or publicly announce an intention to ~~whom Securities may be sold~~effect any such transaction, until the Closing Date. (m) The Issuers will not ~~during~~ 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 ~~period beginning on~~ Exchange Act or otherwise, stabilization or manipulation of the ~~date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose~~ price of any ~~debt securities~~ security of ~~any~~ either Issuer to facilitate the sale or resale of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities~~), without the prior written consent of the Representatives~~. (n) The Issuers will ~~use their best efforts~~ not take any action or omit to ~~do and perform all things required or necessary~~ take any action (such as issuing any press release related to ~~be done and performed under this Agreement~~ any Securities without an appropriate legend) which may result in the loss by the ~~Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ Underwriters of the ~~Securities~~ability to rely on any stabilization safe harbor provided by the U.K. Financial Services Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ~~ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act~~ settlement through Clearstream and ~~Rule 158 thereunder, and will advise you in writing when such statement has been made available~~Euroclear. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) 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; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use fees payable in connection with the ~~offering or sale~~ rating of the Securities with the ratings agencies; and (xii) all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). Except as provided in this Agreement, the Underwriters or shall pay their own expenses relating to the transactions contemplated hereunder. Each Underwriter agrees to pay the portion of such expenses represented by ~~dealers~~ such Underwriter’s pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name in Schedule II bears to ~~whom~~ the aggregate principal amount of Securities ~~may be sold~~set forth opposite the names of all Underwriters) of the Securities (with respect to each Underwriter, the “Pro Rata Expenses”). (mj) ~~The~~ During the Prospectus Delivery Period, the Issuers will not during the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities)not, without the prior written consent of the Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, the electronic road show dated September 2020 and any other electronic road show and road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply 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. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), 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 debt securities issued or guaranteed by such Issuer (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date. (m) Other than the appointment of BofA Securities Europe SA as stabilizing manager in connection with the offering of the Securities, the Issuers 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 either Issuer to facilitate the sale or resale of the Securities. (n) The Issuers will ~~use their best efforts~~ not take any action or omit to ~~do and perform all things required or necessary~~ take any action (such as issuing any press release related to ~~be done and performed under this Agreement~~ any Securities without an appropriate legend) which may result in the loss by the ~~Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ Underwriters of the ~~Securities~~ability to rely on any stabilization safe harbor provided by the U.K. Financial Services Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Agreements of the Issuers. The Issuers, jointly and severally, ------------------------- agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be -------- ------- obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made availablesettlement through The Depository Trust Company. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp, transfer or similar taxes in connection with the original issuance and sale of the Securities and initial resales thereof by the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters (not to exceed $25,000) relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any fees payable in connection with the rating of the Securities ~~on any national securities exchange~~ with the ratings agencies; and (~~viii~~xii) ~~furnishing such copies~~ all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). (j) During the Prospectus Delivery Period, the Issuers will not, without the prior written consent of the ~~Registration Statement~~Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the ~~Preliminary Prospectus~~Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, each electronic road show and any other road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, ~~the Prospectus and all amendments and supplements thereto as may be requested for use~~ including in ~~connection~~ respect of timely filing with the ~~offering or sale~~ Commission, legending and record keeping. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of the ~~Securities~~ 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), directly or indirectly, including the ~~Underwriters~~ 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 debt securities issued or guaranteed by ~~dealers~~ such Issuer (other than the Securities) or publicly announce an intention to ~~whom Securities may be sold~~effect any such transaction, until the Closing Date. (m) The Issuers will not ~~during~~ 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 ~~period beginning on~~ Exchange Act or otherwise, stabilization or manipulation of the ~~date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose~~ price of any ~~debt securities~~ security of ~~any of~~ either Issuer to facilitate the ~~Issuers~~ sale or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery resale of the Securities. (n) Other than the appointment of X.X. Xxxxxx Securities plc as stabilizing manager in connection with the offering of the €600,000,000 aggregate principal amount of the Issuers’ 3.000% senior notes due 2028, the Issuers will not take any action or omit to take any action (such as issuing any press release related to any Securities without an appropriate legend) which may result in the loss by the Underwriters of the ability to rely on any stabilization safe harbor under MAR or provided by the U.K. Financial Conduct Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Agreements of the Issuers. The ~~Issuers, jointly and severally,~~ Issuers hereby agree with ~~each Underwriter~~ the Initial Purchaser as follows: (a) ~~The Company will comply fully and in a timely manner with~~ To advise the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you Initial Purchaser promptly and, if requested by ~~you~~the Initial Purchaser, ~~will~~ confirm such advice in writing: , (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 ~~any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or of the suspension of~~ exemption from qualification of ~~the~~ any Securities for offering or sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation ~~or the threatening~~ of any proceeding by any state securities commission or any other federal or state regulatory authority for such purpose ~~or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act;~~ and (vii) ~~within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or~~ of the happening of any ~~event, which~~ event during the period referred to in Section 5(c) below that makes any statement of a material fact made in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Offering Circular or the ~~Prospectus (as then amended or supplemented)~~ Offering Circular untrue or ~~which~~ that requires ~~the making of~~ any additions to or changes in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Offering Circular or the ~~Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary~~ Offering Circular in order to make the statements therein not misleading. The Issuers shall use their best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption of any Securities under any state securities or Blue Sky laws and, ~~or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If~~ if at any time any ~~stop~~ state securities commission or other federal or state regulatory authority shall issue an order suspending the ~~effectiveness~~ qualification or exemption of ~~the Registration Statement~~ any Securities under any state securities or ~~any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued~~Blue Sky laws, the Issuers ~~will promptly~~ shall use their best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (cb) ~~The~~ To furnish the Initial Purchaser and those persons identified by the Initial Purchaser to the Issuers ~~will furnish to you, without charge, (i) five copies of the registration statement~~ as ~~originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of~~ many copies of the Preliminary ~~Prospectus~~Offering Circular and the Offering Circular, ~~each Issuer Free Writing Prospectus~~and any amendments or supplements thereto, as the Initial Purchaser may reasonably request for the time period specified in Section 5(c). Subject to the Initial Purchaser's compliance with its representations and warranties and agreements set forth in Section 7 hereof, the ~~Prospectus~~ Issuers consent to the use of the Preliminary Offering Circular and the Offering Circular, and any ~~amendment or supplement~~ amendments and supplements thereto ~~as you may reasonably request~~required pursuant hereto, ~~(iii) such number of copies of~~ by the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated DocumentsInitial Purchaser in connection with Exempt Resales. (dc) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for During such period as in the opinion of counsel for the ~~Underwriters a prospectus~~ Initial Purchaser an Offering Circular is required by ~~the Act~~ law to be delivered in connection with ~~sales~~ Exempt Resales by ~~any Underwriter or any dealer,~~ the ~~Issuers will expeditiously deliver to the Underwriters~~ Initial Purchaser and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with ~~the offering and sale~~ market-making activities of the ~~Securities and,~~ Initial Purchaser until consummation of the Exchange Offer (in the case of the ~~Prospectus~~Notes) and until the Warrant Shares have been registered pursuant to the Warrant Shares Shelf Registration Statement (in the case of the Warrants), ~~for such period~~ (i) not to make any amendment or supplement to the Offering Circular of ~~time thereafter as~~ which the ~~Prospectus is required by~~ Initial Purchaser shall not previously have been advised or to which the ~~Act~~ Initial Purchaser shall reasonably object after being so advised and (ii) to prepare promptly upon the Initial Purchaser's reasonable request, any amendment or supplement to the Offering Circular which may be ~~delivered~~ necessary or advisable in connection with ~~sales by any Underwriter~~ such Exempt Resales or ~~any dealer~~such market-making activities. (1d) If If, during the period ~~of time~~ referred to in ~~paragraph (e~~Section 5(c) ~~above~~ above, any event shall occur or condition shall exist as a result of which, in the ~~judgment~~ opinion of counsel to the ~~Issuers or the Underwriters~~Initial Purchaser, it becomes necessary to amend or supplement the ~~Prospectus~~ Offering Circular in order to make the statements therein, in the light of the circumstances when ~~the Prospectus~~ such Offering Circular is delivered to ~~a purchaser~~an Eligible Purchaser, not misleading, or if if, in the opinion of counsel to the Initial Purchaser, it is necessary to amend or supplement the ~~Prospectus~~ Offering Circular to comply with ~~the Act or~~ any ~~other~~ applicable law, ~~the Issuers will~~ forthwith to prepare ~~and, subject to the provisions of paragraph (d) above, file with the Commission~~ an appropriate amendment or supplement to ~~the Prospectus~~ such Offering Circular so that the statements ~~in the Prospectus~~therein, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that ~~the Prospectus~~ such Offering Circular will comply with applicable law, and to furnish to the ~~Underwriters~~ Initial Purchaser and to such ~~dealers~~ other persons as ~~you shall specify~~ the Initial Purchaser may designate such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers Initial Purchaser may reasonably request. (ge) ~~The Issuers will~~ Prior to the sale of all Securities pursuant to Exempt Resales as contemplated hereby, to cooperate with ~~you~~ the Initial Purchaser and ~~with~~ counsel ~~for~~ to the ~~Underwriters~~ Initial Purchaser in connection with the registration or qualification of the Securities for ~~offering~~ offer and sale by to the ~~Underwriters~~ Initial Purchaser and ~~by dealers~~ pursuant to Exempt Resales under the securities or Blue Sky laws of such jurisdictions as ~~you~~ the Initial Purchaser may ~~designate~~ request and ~~will~~ to continue such registration or qualification in effect so long as required for Exempt Resales and to file such consents to service of process or other documents as may be necessary ~~or appropriate~~ in order to effect such registration or qualification; provided, however, that neither Issuer shall be required in ~~no event shall any Issuer be obligated~~ 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 ~~which~~ 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 Circular, the Offering Circular or ~~sale of the Securities~~Exempt Resales, in any jurisdiction ~~where~~ in which it is not now so subject. (hf) ~~The Issuers will make generally available~~ So long as the Notes are outstanding, to ~~its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after~~ furnish to the ~~date of the Prospectus and ending not later than 15 months thereafter,~~ Initial Purchaser as soon as ~~practicable after~~ available copies of all reports or other communications furnished by the ~~end~~ Issuers to their security holders (including holders of the Notes) or furnished to or filed with the Commission or any national securities exchange on which any class of securities of either Issuer is listed and such ~~period,~~ other publicly available information concerning the CR US and/or its subsidiaries as the Initial Purchaser may reasonably request. (g) So long as any of the Series A Notes remain outstanding and during any period in which ~~consolidated earnings statement shall satisfy~~ the ~~provisions of~~ Issuers are not subject to Section ~~11(a~~13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to make available to any holder of Series A Notes in connection with any sale thereof and any prospective purchaser of such Series A Notes from such holder, the information ("Rule ~~158 thereunder, and will advise you in writing when such statement has been made available~~144A Information") required by Rule 144A(d)(4) under the Act. (h) To pay or cause to be paid, whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, all expenses incident to the performance of the obligations of the Issuers under this Agreement, including: (i) ~~During~~ the ~~period~~ fees, disbursements and expenses of ~~five years hereafter,~~ counsel to the Issuers ~~will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders~~ and ~~all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock~~ accountants of the ~~Company may be listed pursuant to requirements of or agreements~~ Issuers in connection with ~~such exchange or to the Commission. (j) The Company will apply the net proceeds from~~ the sale ~~of the Securities in accordance with the description set forth in the Time of Sale Information~~ and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price delivery of the Securities to ~~facilitate~~ the ~~sale or resale of the Securities. (l) The Issuers~~Initial Purchaser and pursuant to Exempt Resales, ~~jointly~~ and ~~severally, will pay~~ all ~~costs, expenses,~~ other fees and ~~taxes incident to (i)~~ expenses in connection with the preparation, printing, filing and distribution ~~under the Act~~ of the ~~Registration Statement (including financial statements and exhibits)~~Preliminary Offering Circular, the Offering Circular and all amendments and supplements ~~thereto prior~~ to ~~or during~~ any of the ~~period~~ foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchaser and persons designated by it in the quantities specified ~~in paragraph (e) above~~herein, (ii) all costs and expenses related to the ~~preparation~~ transfer and delivery of the ~~Indenture~~Securities to the Initial Purchaser and pursuant to Exempt Resales, ~~the issuance of the Notes and the fees of the Trustee~~including any transfer or other taxes payable thereon, (iii) all costs of printing or producing this Agreement, the ~~printing~~ other Operative Documents and any other agreements or documents in connection with the offering, purchase, sale or delivery ~~(including postage, air freight charges and charges for counting and packaging) of such copies~~ of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above~~Securities, (iv) ~~the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and~~ all ~~other agreements, memoranda, correspondence and other documents printed and delivered~~ expenses in connection with ~~the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v)~~ the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and ~~Canada~~ all costs of printing or producing any preliminary and supplemental Blue Sky memoranda in connection therewith (including ~~in each case~~ the ~~reasonable~~ filing fees and fees and disbursements of counsel for the ~~Underwriters relating to~~ Initial Purchaser in connection with such registration or qualification and memoranda relating thereto), (v) the cost of printing certificates representing the Securities, (vi) ~~filings~~ all expenses and ~~clearance with the Financial Industry Regulatory Authority~~ listing fees in connection with the ~~offering~~ application for quotation of the Notes in the National Association of Securities Dealers, Inc. (~~including the reasonable fees and disbursements of counsel for the Underwriters relating thereto~~"NASD") Automated Quotation System - PORTAL ("PORTAL"), (vii) the ~~listing, if any,~~ fees and expenses of the ~~Securities on any national securities exchange~~ Trustee and ~~(viii) furnishing such copies of~~ the ~~Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use~~ Trustee's counsel in connection with the ~~offering or sale~~ Indenture and the Notes, (viii) the fees and expenses of the ~~Securities by~~ Warrant Agent and the ~~Underwriters or by dealers to whom Securities may be sold.~~ Warrant Agent's counsel in connection with the Warrant Agreement and the Warrants, (mix) ~~The Issuers will not during~~ the ~~period beginning on the date hereof~~ costs and ~~continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose~~ charges of any ~~debt securities~~ transfer agent, registrar and/or depositary (including DTC), (x) any fees charged by rating agencies for the rating of the Securities, (xi) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Notes Registration Rights Agreement, (xii) all costs and expenses of any Warrant Shares Shelf Registration Statement as set forth in the Warrant Shares Shelf Registration Rights Agreement, and (xiii) and all other costs and expenses incident to the performance of the obligations of the Issuers ~~or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable~~ hereunder for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that which provision is not ~~filed with the Commission~~ otherwise made in ~~accordance with Rule 433 under the Act~~this Section.

Appears in 1 contract

Samples: Purchase Agreement (Club Regina Resorts Inc)

Agreements of the Issuers. The Issuers, jointly and severally, ------------------------- agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be -------- ------- obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the ~~Prospectus~~ Registration Statement is declared effective by the Commission (the "Effective Date") and ending not -------------- later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section ~~11(a~~ll(a) of the Act and Rule 158 thereunder, and ~~will~~ to advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the ~~common stock of the Company~~ Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the ~~Securities~~ Notes in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the ~~Securities~~ Notes to facilitate the sale or resale of the ~~Securities~~Notes. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, ~~correspondence~~ correspon- dence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ~~the Representatives~~Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the ~~Securities~~Notes. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ~~ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act~~ settlement through Clearstream and ~~Rule 158 thereunder, and will advise you in writing when such statement has been made available~~Euroclear. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp, transfer or similar taxes in connection with the original issuance and sale of the Securities and initial resales thereof by the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters (not to exceed $25,000) relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use fees payable in connection with the ~~offering or sale~~ rating of the Securities with the ratings agencies; and (xii) all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). Except as provided in this Agreement, the Underwriters or shall pay their own expenses relating to the transactions contemplated hereunder. Each Underwriter agrees to pay the portion of such expenses represented by ~~dealers~~ such Underwriter’s pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name in Schedule II bears to ~~whom~~ the aggregate principal amount of Securities ~~may be sold~~set forth opposite the names of all Underwriters) of the Securities (with respect to each Underwriter, the “Pro Rata Expenses”). (mj) ~~The~~ During the Prospectus Delivery Period, the Issuers will not during the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities)not, without the prior written consent of the Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, each electronic road show and any other road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply 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. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), 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 debt securities issued or guaranteed by such Issuer (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date. (m) Other than the appointment of X.X. Xxxxxx Securities plc as stabilizing manager in connection with the offering of the Securities, the Issuers 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 either Issuer to facilitate the sale or resale of the Securities. (n) The Issuers will ~~use their best efforts~~ not take any action or omit to ~~do and perform all things required or necessary~~ take any action (such as issuing any press release related to ~~be done and performed under this Agreement~~ any Securities without an appropriate legend) which may result in the loss by the ~~Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ Underwriters of the ~~Securities~~ability to rely on any stabilization safe harbor provided under MAR or by the U.K. Financial Conduct Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Un- derwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the registration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ First Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Company will not sell, contract to sell or otherwise dispose of any Common Stock (other than any shares issued upon conversion of the Notes) or any securities convertible into or exercisable or exchangeable for Common Stock (other than the Notes), or grant any options, warrants or other rights to purchase Common Stock, for a period of 90 days after the date of this Agreement, without the prior written consent of the Underwriter; provided, however, that the foregoing shall not prohibit (i) the grant of options pursuant to stock option or other employee benefit plans, (ii) the issuance of Common Stock upon exercise of options or other rights to acquire Common Stock granted under stock option or other employee benefit plans, or (iii) contracts for and the sale or issuance of Common Stock or options, warrants or other rights to purchase Common Stock in connection with the acquisition of a business or property or assets by the Company or any of its subsidiaries or in connection with any business combination. (o) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to ~~the~~ a Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information Pro- spectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by ~~the Underwriters~~ any Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration ~~Statement~~ State- ment (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by ~~the Underwriters~~ any Underwriter or by dealers to whom Securities may be sold. The Issuers will also pay the $100,000 fee of the QIU. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ~~the Representatives~~Banc of America. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made availablesettlement through The Depository Trust Company. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp, transfer or similar taxes in connection with the original issuance and sale of the Securities and initial resales thereof by the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters (not to exceed $25,000) relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any fees payable in connection with the rating of the Securities ~~on any national securities exchange~~ with the ratings agencies; and (~~viii~~xii) ~~furnishing such copies~~ all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). (j) During the Prospectus Delivery Period, the Issuers will not, without the prior written consent of the ~~Registration Statement~~Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the ~~Preliminary Prospectus~~Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, each electronic road show and any other road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, ~~the Prospectus and all amendments and supplements thereto as may be requested for use~~ including in ~~connection~~ respect of timely filing with the ~~offering or sale~~ Commission, legending and record keeping. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of the ~~Securities~~ 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), directly or indirectly, including the ~~Underwriters~~ 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 debt securities issued or guaranteed by ~~dealers~~ such Issuer (other than the Securities) or publicly announce an intention to ~~whom Securities may be sold~~effect any such transaction, until the Closing Date. (m) The Issuers will not ~~during~~ 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 ~~period beginning on~~ Exchange Act or otherwise, stabilization or manipulation of the ~~date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose~~ price of any ~~debt securities~~ security of ~~any~~ either Issuer to facilitate the sale or resale of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities~~), without the prior written consent of the Representatives~~. (n) The Issuers will ~~use their best efforts~~ not take any action or omit to ~~do and perform all things required or necessary~~ take any action (such as issuing any press release related to ~~be done and performed under this Agreement~~ any Securities without an appropriate legend) which may result in the loss by the ~~Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ Underwriters of the ~~Securities~~ability to rely on any stabilization safe harbor under MAR or provided by the U.K. Financial Conduct Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made availablesettlement through The Depository Trust Company. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp, transfer or similar taxes in connection with the original issuance and sale of the Securities and initial resales thereof by the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any fees payable in connection with the rating of the Securities ~~on any national securities exchange~~ with the ratings agencies; and (~~viii~~xii) ~~furnishing such copies~~ all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). (j) During the Prospectus Delivery Period, the Issuers will not, without the prior written consent of the ~~Registration Statement~~Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the ~~Preliminary~~ Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, the electronic road show dated September 2021 and any other electronic road show and road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus, .” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, ~~the Prospectus and all amendments and supplements thereto as may be requested for use~~ including in ~~connection~~ respect of timely filing with the ~~offering or sale~~ Commission, legending and record keeping. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of the ~~Securities~~ 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), directly or indirectly, including the ~~Underwriters~~ 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 debt securities issued or guaranteed by ~~dealers~~ such Issuer (other than the Securities) or publicly announce an intention to ~~whom Securities may be sold~~effect any such transaction, until the Closing Date. (m) The Issuers will not ~~during~~ 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 ~~period beginning on~~ Exchange Act or otherwise, stabilization or manipulation of the ~~date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose~~ price of any ~~debt securities~~ security of ~~any~~ either Issuer to facilitate the sale or resale of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities~~), without the prior written consent of the Representatives~~. (n) The Issuers will ~~use their best efforts~~ not take any action or omit to ~~do and perform all things required or necessary~~ take any action (such as issuing any press release related to ~~be done and performed under this Agreement~~ any Securities without an appropriate legend) which may result in the loss by the ~~Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ Underwriters of the ~~Securities~~ability to rely on any stabilization safe harbor provided by the U.K. Financial Services Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Agreements of the Issuers. The Issuers, jointly and severally, agree with ~~each~~ the Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the ~~Underwriters~~ Underwriter a prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer, the Issuers will expeditiously deliver to the ~~Underwriters~~ Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by ~~any~~ the Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by ~~any~~ the Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~opinion of counsel for the Underwriter, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the ~~Underwriters~~ Underwriter and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters Underwriter or such dealers may reasonably request. In the event that the Issuers and you agree that the Prospectus should be amended or supplemented, the Issuers, if requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Issuers will cooperate with you and with counsel for the ~~Underwriters~~ Underwriter in connection with the ~~registration~~ regis- tration or qualification of the Securities for offering and sale by the ~~Underwriters~~ Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; ~~provided~~PROVIDED, ~~however~~HOWEVER, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and ~~will~~ advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the ~~common stock of the Company~~ Common Stock may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the ~~preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the~~ printing and delivery ~~(including postage, air freight charges and charges for counting and packaging)~~ of ~~such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iviii) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such printing and delivery), (viv) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the ~~Underwriters~~ Underwriter relating to such registration or qualification and memoranda relating thereto), (viv) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (~~vii~~vi) the listing, if any, of the Securities on any national securities ~~exchange~~ exchange, and (~~viii~~vii) furnishing such copies of the Registration Statement~~, the Preliminary Prospectus, each Issuer Free Writing Prospectus~~, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the ~~Underwriters~~ Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the ~~Representatives~~Underwriter. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company ~~will~~will comply with its covenants in the Solicitation Agent Agreement dated as of May 27, ~~pursuant to reasonable procedures developed in good faith~~2000 (the "SOLICITATION AGENT AGREEMENT") between the Company and Xxxxxx Xxxxxxx & Co. Incorporated, ~~retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act~~as solicitation agent.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to ~~the Underwriters~~ each Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably ~~request and (2) if at any time prior to~~ request. In the ~~Time of Sale (i) any~~ event ~~shall occur or condition shall exist as a result of which, in the judgment of~~ that the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so and you agree that the ~~statements in the Time of Sale Information, as so~~ Prospectus should be amended or supplemented, the Issuers, if requested by you, will ~~not~~promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the ~~light of~~ matters to be covered by the ~~circumstances when it is so delivered, be misleading,~~ proposed amendment or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably requestsupplement. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by ~~the Underwriters~~ any Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “"Use of Proceeds.”" (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by ~~the Underwriters~~ any Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ~~the Representatives~~UBS Securities LLC. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with ~~each Underwriter~~ the Initial Purchasers as follows: (a) ~~The Company will comply fully and in a timely manner with~~ To advise the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you Initial Purchasers promptly and, if requested by ~~you~~the Initial Purchasers, ~~will~~ confirm such advice in writing: , (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 ~~any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or of the suspension of~~ exemption from qualification of ~~the Securities~~ any Notes for offering or sale in any ~~jurisdiction~~ jurisdiction, or the initiation ~~or the threatening~~ of any proceeding for such purpose by any state securities commission or ~~of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act;~~ other regulatory authority and (vii) ~~within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or~~ of the happening of any ~~event, which~~ event that makes any statement of a material fact made in the ~~Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented)~~ Offering Memorandum untrue or ~~which~~ that requires the making of any additions to or changes in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Offering Memorandum or the ~~Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary~~ Offering Memorandum in order to make the statements ~~therein~~ therein, in the light of the circumstances under which they are made, not misleading. The Issuers shall use their reasonable 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, ~~or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If~~ if at any time any ~~stop~~ state securities commission or other regulatory authority shall issue an order suspending the ~~effectiveness~~ qualification or exemption of ~~the Registration Statement~~ any Notes or Guarantees of Notes under any ~~order preventing~~ state securities or ~~suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued~~Blue Sky laws, the Issuers ~~will promptly~~ shall use their reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. (cb) ~~The Issuers will~~ To furnish ~~to you, without charge, (i) five copies of~~ the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealerInitial Purchasers, without charge, as many copies of the ~~Preliminary Prospectus~~ Offering Memorandum, including all documents incorporated therein by reference, and any amendments or supplements thereto, as the ~~Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you~~ Initial Purchasers may reasonably request. The Issuers consent to the use of the ~~Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby~~Offering Memorandum, and any amendments and supplements thereto required pursuant hereto, by the ~~Prospectus~~ Initial Purchasers in connection with Exempt Resales. (c) Not to amend or supplement the Offering Memorandum prior to the Closing Date unless the Initial Purchasers shall previously have been advised thereof and of shall not have objected thereto within a reasonable time after being furnished a copy thereof. The Issuers shall promptly prepare, upon the Initial Purchasers' request, any amendment or supplement ~~thereto) in accordance with~~ to the ~~provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities~~ Offering Memorandum that may be ~~sold, both~~ necessary or advisable in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealerExempt Resales. (1d) ~~If during~~ If, after the ~~period~~ date hereof and prior to consummation of ~~time referred to in paragraph (e) above~~ any Exempt Resale, any event shall occur as a result of which, in the judgment of the Issuers or in the ~~Underwriters~~reasonable opinion of counsel for the Issuers or counsel for the Initial Purchasers, it becomes necessary or advisable to amend or supplement the ~~Prospectus~~ Offering Memorandum in order to make the statements therein, in the light of the circumstances when ~~the Prospectus~~ such Offering Memorandum is delivered to an Eligible Purchaser which is a prospective purchaser, not misleading, or if it is necessary or advisable to amend or supplement the ~~Prospectus~~ Offering Memorandum to comply with ~~the Act or any other~~ applicable law, (i) to notify the ~~Issuers will~~ Initial Purchasers and (ii) forthwith to prepare ~~and, subject to the provisions of paragraph (d) above, file with the Commission~~ an appropriate amendment or supplement to ~~the Prospectus~~ such Offering Memorandum so that the statements ~~in the Prospectus,~~ therein as so amended or ~~supplemented,~~ supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that ~~the Prospectus~~ such Offering Memorandum will comply with applicable law. Each Initial Purchaser agrees, severally and ~~to furnish to~~ not jointly, that, upon its receipt of any written notice from the ~~Underwriters and to such dealers as you shall specify such number~~ Company of ~~copies thereof as~~ the ~~Underwriters~~ existence of any fact or ~~such dealers may reasonably request and (2) if at any time prior to~~ the ~~Time~~ happening of ~~Sale (i)~~ any event ~~shall occur~~ that requires the making of any additions to or ~~condition shall exist as a result of which,~~ changes in the ~~judgment of the Issuers~~ Offering Memorandum (or ~~the Underwriters~~amendment or supplement thereto, ~~the Time of Sale Information~~ as ~~then amended or supplemented would include~~ applicable) referred to in this Section 4(d) in order that such document will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the ~~circumstances~~circumstances existing as of the date such document was delivered, not ~~misleading~~ misleading, such Initial Purchaser shall forthwith discontinue disposition of the applicable Notes pursuant to such document until (A) such Initial Purchaser receives from the Company copies of an amended or supplemented document that the Company states in writing may be used by such Initial Purchaser or (iiB) it such Initial Purchaser is ~~necessary to amend or supplement~~ advised in writing by the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so Company that the ~~statements in the Time~~ use of ~~Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered,~~ such document may be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably requestresumed. (ge) ~~The Issuers will~~ To cooperate with ~~you~~ the Initial Purchasers and ~~with~~ counsel for the ~~Underwriters~~ Initial Purchasers in connection with the qualification or registration ~~or qualification~~ of the ~~Securities for offering and sale by the Underwriters and by dealers~~ Series C Notes under the securities or Blue Sky laws of such jurisdictions as ~~you~~ the Initial Purchasers may ~~designate~~ reasonably request and ~~will file~~ to continue such ~~consents to service of process or other documents necessary or appropriate~~ qualification in ~~order to~~ effect ~~such registration or qualification~~so long as required for the Exempt Resales; provided, however, that none of the Issuers shall be required in ~~no event shall any Issuer be obligated~~ 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 ~~which~~ that would subject it to service of process in ~~suits~~suits or taxation, in each case, other than ~~those arising out of~~ as to matters and transactions relating to the ~~offering~~ Offering Memorandum or ~~sale of the Securities~~Exempt Resales, in any jurisdiction where it is not now so subject. (hf) ~~The Issuers will make generally available to its security holders a consolidated earnings statement, which need~~ Whether or not ~~be audited, covering a twelve-month period commencing after~~ the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as availabletransactions contemplated by this Agreement are consummated or this Agreement becomes effective or is terminated, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to the performance of the obligations of the Issuers hereunder, including in connection with: (i) the preparation, printing, filing and distribution ~~under the Act~~ of the ~~Registration Statement~~ Offering Memorandum (~~including~~ including, without limitation, financial ~~statements and exhibits),~~ statements) and all amendments and supplements thereto ~~prior to or during the period specified in paragraph (e) above~~required pursuant hereto, (ii) the ~~preparation of the Indenture~~issuance, ~~the issuance~~ transfer and delivery of the Notes and the ~~fees of~~ Guarantees to the ~~Trustee~~Initial Purchasers, (iii) the ~~printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies~~ qualification or registration of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ Notes and the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities Guarantees for offer and sale under the securities or Blue Sky laws of the several states (including, without limitation, the cost of printing and ~~Canada (including in each case~~ mailing a preliminary and final Blue Sky Memorandum and the reasonable fees and disbursements of counsel for the ~~Underwriters relating to such registration or qualification and memoranda~~ Initial Purchasers relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viiiiv) furnishing such copies of the ~~Registration Statement~~Offering Memorandum, ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus~~ and all amendments and supplements ~~thereto~~ thereto, as may be requested for use in connection with Exempt Resales, (v) the ~~offering or~~ preparation of certificates for the Notes and the Guarantees (including, without limitation, printing and engraving thereof), (vi) the fees, disbursements and expenses of the Issuers' counsel and accountants, (vii) all fees and expenses (including fees and expenses of counsel) of the Company in connection with the approval of the Notes by DTC for "book-entry" transfer, (viii) rating the Notes by rating agencies, (ix) the reasonable fees and expenses of the Trustee and its counsel, (x) the performance by the Issuers of their other obligations under this Agreement and the other Operative Documents and (xi) "roadshow" travel and other expenses incurred by the Company in connection with the marketing and sale of the Notes. (g) To use the proceeds from the sale of the Series C Notes in the manner described in the Offering Memorandum under the caption " The Transactions; Use of Proceeds." (h) Not to voluntarily claim, and to resist actively any attempts to claim, the benefit of any usury laws against the holders of any Notes. (i) To do and perform all things required to be done and performed under this Agreement by them prior to or after the Closing Date and to satisfy all conditions precedent on their part to the delivery of the Series C Notes and the Guarantees. (j) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Act) that would be integrated with the sale of the Series C Notes in a manner that would require the registration under the Act of the sale to the Initial Purchasers or the Eligible Purchasers of the Series C Notes or to take any other action that would result in the Exempt Resales not being exempt from registration under the Act. (k) For so long as any of the Notes remain outstanding and during any period in which the Issuers are not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make available to any holder or beneficial owner of Series C Notes in connection with any sale thereof and any prospective purchaser of such Notes from such holder or beneficial owner, the information required by Rule 144A(d)(4) under the ~~Underwriters or~~ Act. (l) To comply with all of their agreements set forth in the Registration Rights Agreement and the Registration Rights Agreement Supplement and all agreements set forth in the representation letters of the Company to DTC relating to the approval of the Notes by ~~dealers to whom Securities may be sold~~DTC for "book-entry" transfer. (m) ~~The Issuers will not during~~ To use their reasonable best efforts to effect the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any inclusion of the ~~Issuers or any warrants, options or other rights~~ Notes in PORTAL and to ~~purchase or acquire debt securities of any~~ obtain approval of the ~~Issuers or any securities convertible into or exchangeable~~ Series C Notes by DTC for ~~debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives~~"book-entry" transfer. (n) ~~The~~ During a period of five years following the Closing Date, to deliver without charge to the Initial Purchasers, as they may reasonably request, promptly upon their becoming available, copies of (i) all reports or other publicly available information that the Company shall mail or otherwise make available to its public security holders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange and such other publicly available information concerning the Company or any of its Subsidiaries, including without limitation, press releases. (o) Prior to the Closing Date, to furnish to the Initial Purchasers, as soon as they have been prepared in the ordinary course by the Issuers, copies of any unaudited interim financial statements for any period subsequent to the periods covered by the financial statements appearing in the Offering Memorandum. (p) Not to take, directly or indirectly, any action designed to, or that might reasonably be expected to, cause or result in stabilization or manipulation of the price of any security of the Issuers to facilitate the sale or resale of the Notes. Except as permitted by the Act, none of the Issuers will distribute any (i) preliminary offering memorandum, (ii) offering memorandum, including, without limitation, the Offering Memorandum, or (iii) other offering material in connection with the offering and sale of the Notes. (q) To use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement ~~by the Issuers~~ prior to the Closing Date and to satisfy all conditions precedent to the delivery of the ~~Securities~~Series C Notes and the Guarantees. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Purchase Agreement (Holmes Products Corp)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the ~~Act;~~ Act and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the ~~common stock of the Company~~ Common Stock (as hereinafter defined) may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in ~~the Time of Sale Information and~~ the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ last possible Option Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than the Securities), without the prior written consent of ~~the Representatives~~Citi. (n) The Company will not sell, contract to sell or otherwise dispose of any Common Stock (other than any shares issued upon conversion of the Notes) or any securities convertible into or exercisable or exchangeable for Common Stock (other than the Notes), or grant any options, warrants or other rights to purchase Common Stock, for a period ending 60 days after the date of the Prospectus Supplement, without the prior written consent of Citi; provided, however, that the foregoing shall not prohibit (i) the grant of options pursuant to stock option or other employee benefit plans, (ii) the issuance of Common Stock upon exercise of options or other rights to acquire Common Stock granted under stock option or other employee benefit plans, or (iii) contracts for and the sale or issuance of Common Stock or options, warrants or other rights to purchase Common Stock in connection with the acquisition of a business or property or assets by the Company or any of its subsidiaries or in connection with any business combination. (o) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to ~~the~~ each Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (op) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act. (q) The Company will reserve and keep available at all times, free of pre-emptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy all obligations to issue the Underlying Shares (as hereinafter defined).

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or supplement ~~thereto as you may reasonably request~~thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably ~~request and (2) if at any time prior to~~ request. In the ~~Time of Sale (i) any~~ event ~~shall occur or condition shall exist as a result of which, in the judgment of~~ that the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so and you agree that the ~~statements in the Time of Sale Information, as so~~ Prospectus should be amended or supplemented, the Issuers, if requested by you, will ~~not~~promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the ~~light of~~ matters to be covered by the ~~circumstances when it is so delivered, be misleading,~~ proposed amendment or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably requestsupplement. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by ~~the Underwriters~~ any Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by ~~the Underwriters~~ any Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ~~the Representatives~~UBS. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The ~~Issuers, jointly and severally,~~ Issuers agree with ~~each Underwriter~~ the several Underwriters as follows: (a) ~~The Company~~ If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Notes may commence, the Issuers will ~~comply fully and in a timely manner with~~ endeavor to cause the ~~applicable provisions of Rule 424 and Rule 430B under the Act~~ Registration Statement or such post-effective amendment to become effective as soon as possible and will ~~file any Issuer Free Writing Prospectus (as defined~~ advise you promptly and, if requested by you, will confirm such advice in ~~Section 6(c)) to~~ writing, when the ~~extent required by Rule 433 under the Act~~Registration Statement or such post-effective amendment has become effective. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, ~~the Preliminary~~ any Prepricing Prospectus or the Prospectus or for additional information; (ivii) 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 or the Prospectus or~~ of the suspension of qualification of the ~~Securities~~ Notes for offering or sale in any jurisdiction or the initiation ~~or the threatening~~ of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (viii) within the period of time referred to in paragraph (ef) below, of any change in the Company’s 's condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act or the regulations thereunder to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time.or (c) The Issuers will furnish to you, without ~~charge,~~ charge (i) ~~five~~ six signed copies of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits ~~thereto~~to the registration statement, (ii) such number of ~~copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of~~ conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iviii) such number of copies of the Indenture and of the Incorporated Documents, without exhibits, as you may request, and (viv) ~~five~~ six copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in ~~paragraph~~ the first sentence in subsection (ef) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) Prior to the execution and delivery of this Agreement, the Issuers have delivered to you, without charge, in such quantities as you have requested, copies of each form of the Prepricing Prospectus. The Issuers consent to the use, in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the several Underwriters and by dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so furnished by the Issuers. (f) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or ~~any~~ dealer, the Issuers will expeditiously deliver to ~~the Underwriters~~ each Underwriter and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may ~~reasonably~~ request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the ~~Securities~~ Notes are offered by ~~any Underwriter~~ the several Underwriters and by all dealers to whom ~~Securities~~ Notes may be sold, both in connection with the offering and sale of the ~~Securities and, in the case of the Prospectus,~~ Notes and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or ~~any~~ dealer~~. (1)~~ . If during ~~the~~ such period of time ~~referred to in paragraph (e) above~~ any event shall occur ~~as a result of which,~~ that in the judgment of the Issuers or in the ~~Underwriters, it becomes necessary~~ opinion of counsel for the Underwriters is required to ~~amend or supplement~~ be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances ~~when the Prospectus is delivered to a purchaser~~under which they were made, not misleading, or if it is necessary to supplement or amend ~~or supplement~~ the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or ~~supplement~~ to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request.such (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the ~~Securities~~ Notes for offering and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; ~~provided, however,~~ provided that in no event shall ~~any Issuer~~ the Issuers be obligated to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action which would subject it them to service of process in suits, other than those arising out of the offering or sale of the ~~Securities~~Notes, in any jurisdiction where ~~it is~~ they are not now so subject. (h) The ~~Issuers~~ Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the effective date of the ~~Prospectus~~ Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section ~~11(a~~ll(a) of the ~~Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available~~Act. (i) ~~During~~ So long as any of the ~~period of five years hereafter~~Notes are outstanding, the Issuers will furnish to you (i) as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock each report of the Company ~~may be listed pursuant~~ mailed to ~~requirements of~~ stockholders or ~~agreements~~ filed with ~~such exchange or to~~ the Commission, and (ii) from time to time such other information concerning the Company as you may request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (otherwise than pursuant to the second paragraph of Section 10 hereof or by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Issuers to comply with the terms or fulfill any of the conditions of this Agreement, the Issuers agree to reimburse the Representatives for all out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by you in connection herewith. (k) The ~~Company~~ Issuers will apply the net proceeds from the sale of the ~~Securities~~ Notes substantially in accordance with the description set forth in the ~~Time~~ Prospectus. (l) If Rule 430A of ~~Sale Information and~~ the Act is employed, the Issuers will timely file the Prospectus pursuant to Rule 424(b) under the ~~caption “Use~~ Act and will advise you of ~~Proceeds~~the time and manner of such filing.” (km) ~~Neither~~ Except as provided in this Agreement, the Company ~~nor~~ will not sell, contract to sell or otherwise dispose of any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or grant any options or warrants to purchase Common Stock, for (n) The Company has furnished or will furnish to you "lock-up" letters, in form and substance satisfactory to you, signed by each of its ~~subsidiaries has~~ current officers and directors and each of its stockholders designated by you. (o) Except as stated in this Agreement and in the Prepricing Prospectus and Prospectus, the Issuers have not taken, or nor will they take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the ~~Securities~~ Notes to facilitate the sale or resale of the ~~Securities~~Notes. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and Canada (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (op) The Company ~~will, pursuant~~ will use its best efforts: to ~~reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed~~ have the Notes listed on the New York Stock Exchange concurrently with the ~~Commission in accordance with Rule 433 under~~ effectiveness of the ~~Act~~registration statement.

Appears in 1 contract

Samples: Underwriting Agreement (KCS Medallion Resources Inc)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and Canada (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is ~~the first business day~~ 30 days after the ~~Closing Date~~date hereof, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Issuers will, if necessary or required by law, file an amendment to the Registration Statement or, if necessary pursuant to Rule 430A under the Act, a post-effective amendment to the Registration Statement, as soon as practicable after the execution and delivery of this Agreement, and will use their best efforts to cause the Registration Statement or such post-effective amendment to become effective at the earliest possible time. The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule ~~430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433~~ 430A under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) ~~or of any Issuer Free Writing Prospectus~~ and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration ~~Statement, the Preliminary Prospectus~~ Statement or the Prospectus or for 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 or the~~ Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such ~~purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act~~purpose; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration ~~Statement, the Time of Sale Information~~ 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, the Time of Sale Information~~ Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the ~~Time of Sale Information or the~~ Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing~~ Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) ~~such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and any amendment or ~~supplement thereto as you may reasonably request~~sup- plement thereto, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not ~~use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information,~~ file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document ~~which~~ which, upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be ~~used or~~ filed, you shall reasonably object. (e) As soon ~~as possible~~ after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the ~~Preliminary Prospectus and the~~ Prospectus (and of any amendment or supplement thereto) ~~and each Issuer Free Writing Prospectus~~ as you may reasonably request. The Issuers consent to the use of ~~the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and~~ the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or ~~blue sky~~ Blue Sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities ~~and, in the case of the Prospectus,~~ and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1f) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or in the opinion of counsel for the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably ~~request and (2) if at any time prior to~~ request. In the ~~Time of Sale (i) any~~ event ~~shall occur or condition shall exist as a result of which, in the judgment of~~ that the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so and you agree that the ~~statements in the Time of Sale Information, as so~~ Prospectus should be amended or supplemented, the Issuers, if requested by you, will ~~not~~promptly issue a press release, in compliance with applicable securities laws, announcing or disclosing the ~~light of~~ matters to be covered by the ~~circumstances when it is so delivered, be misleading,~~ proposed amendment or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably requestsupplement. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by ~~the Underwriters~~ any Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to its security holders a consolidated ~~earnings~~ earning statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, ~~to the extent not otherwise available on the Commission’s website,~~ a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the ~~Time of Sale Information and the~~ Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The ~~Issuers, jointly and severally,~~ Issuers will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, ; (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of ~~the Preliminary Prospectus, each Issuer Free Writing Prospectus,~~ the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states ~~and Canada~~ (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the ~~Financial Industry Regulatory Authority~~ National Association of Securities Dealers, Inc. in connection with the ~~offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto)~~offering, (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus, the~~ Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by ~~the Underwriters~~ any Underwriter or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the ~~date which is the first business day after the~~ Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of ~~any of~~ the ~~Issuers~~ Company or any warrants, options or other rights to purchase or acquire debt securities of ~~any of~~ the ~~Issuers~~ Company or any securities convertible into or exchangeable for debt securities of ~~any of~~ the ~~Issuers~~ Company (other than (i) the ~~Securities~~Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of ~~the Representatives~~Citigroup. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. The Issuers, jointly and severally, agree with each Underwriter as follows: (a) The Company will comply fully and in a timely manner with the applicable provisions of Rule 424 and Rule 430B under the Act and will file any Issuer Free Writing Prospectus (as defined in Section 6(c)) to the extent required by Rule 433 under the Act. (b) The Issuers will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of the effectiveness of any amendment to the Registration Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document) or of any Issuer Free Writing Prospectus and to furnish you with copies thereof; (iii) of the receipt of any comments from the Commission that relate to the Registration Statement or of any request by the Commission for amendment of or a supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus or for 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 or the Prospectus or of the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or the threatening of any proceeding for such purpose or of the Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below, of any change in the Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time 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 Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Issuers will furnish to you, without charge, (i) five copies of the registration statement as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may request, and (v) five copies of the exhibits to the Incorporated Documents. (d) The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information, file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary Prospectus, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event shall occur as a result of which, in the judgment of the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with the Act or any other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission (to the extent required) an appropriate amendment or supplement to the Time of Sale Information so that the statements in the Time of Sale Information, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Time of Sale Information will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request. (g) The Issuers will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Securities for offering and sale by the Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that in no event shall any Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which 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 Issuers will make generally available to ~~its~~ the security holders of the Company a consolidated earnings statement, which need not be audited, covering a twelve-month period commencing after the date of the Prospectus and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder, and will advise you in writing when such statement has been made available. (i) During the period of five years hereafter, the Issuers will furnish to you as soon as available, to the extent not otherwise available on the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of the Indenture, the issuance of the Notes and the fees of the Trustee, , (iii) the printing and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments or supplements thereto during the period specified in paragraph (e) above, (iv) the printing and delivery of this Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all other agreements, memoranda, correspondence and other documents printed and delivered in connection with the offering of the Securities (including in each case any disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the registration or qualification of the Securities for offer and sale under the securities or Blue Sky laws of the several states and Canada (including in each case the reasonable fees and disbursements of counsel for the Underwriters relating to such registration or qualification and memoranda relating thereto), (vi) filings and clearance with the Financial Industry Regulatory Authority in connection with the offering (including the reasonable fees and disbursements of counsel for the Underwriters relating thereto), (vii) the listing, if any, of the Securities on any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use in connection with the offering or sale of the Securities by the Underwriters or by dealers to whom Securities may be sold. (m) The Issuers will not during the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities), without the prior written consent of the Representatives. (n) The Issuers will use their best efforts to do and perform all things required or necessary to be done and performed under this Agreement by the Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Securities. (o) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Horton D R Inc /De/)

Agreements of the Issuers. ~~The~~ Each of the Issuers, jointly and severally, ~~agree~~ agrees with ~~each Underwriter as follows~~the several Underwriters that: (a) ~~The Company will comply fully and in a timely manner~~ During the period beginning with the ~~applicable provisions~~ Initial Sale Time and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Final Prospectus is no longer required by law to be delivered in connection with the initial offering or sale of the Securities (including in circumstances where such requirement may be satisfied pursuant to Rule ~~424 and Rule 430B under~~ 172) (the ~~Act and~~ “Prospectus Delivery Period”), the Issuers will not file any ~~Issuer Free Writing~~ amendment of the Registration Statement or supplement (including the Final Prospectus ~~(as defined in Section 6(c)~~or any Preliminary Prospectus) to the ~~extent required by~~ Basic Prospectus unless, in each case, the Issuers have furnished the Representatives a copy for their review prior to such time, and the Issuers will not file any such proposed amendment or supplement to which the Representatives reasonably object. Subject to the foregoing sentence, the Issuers will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule ~~433 under~~ 424(b) within the ~~Act~~time period prescribed and will provide evidence satisfactory to the Representatives of such timely filings. (b) ~~The~~ During the Prospectus Delivery Period, the Issuers will promptly advise ~~you promptly and, if requested by you, will confirm such advice in writing:~~ the Representatives (i) when the Final Prospectus and any Issuer Free Writing Prospectus, and any supplements or amendments thereto, have been filed with the Commission pursuant to Rules 424(b) and 433, respectively, (ii) when, prior to termination of the ~~effectiveness~~ offering of the Securities, any amendment to the Registration ~~Statement; (ii) of the transmission to the Commission for filing of any supplement to the Prospectus (including any document that would as a result of such filing become an Incorporated Document)~~ Statement has been filed or ~~of any Issuer Free Writing Prospectus and to furnish you with copies thereof;~~ becomes effective, (iii) ~~of the receipt of any comments from the Commission that relate to the Registration Statement or~~ of any request by the Commission for any amendment of the Registration Statement or a any Rule 462(b) Registration Statement, or for any supplement to the ~~Registration Statement, the Preliminary Prospectus or 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 ~~order preventing~~ notice objecting to its use or ~~suspending~~ the ~~use~~ institution or threatening of any proceeding for that purpose and (v) of the ~~Preliminary Prospectus or~~ receipt by the ~~Prospectus or~~ Issuers of any notification with respect to the suspension of the qualification of the Securities for ~~offering or~~ sale in any jurisdiction or the initiation or ~~the~~ threatening of any proceeding for such ~~purpose or of~~ purpose. The Issuers will use their reasonable best efforts to prevent the ~~Company’s becoming the subject of a proceeding pursuant to Section 8A of the Act; and (v) within the period of time referred to in paragraph (e) below,~~ issuance of any ~~change in~~ such stop order or the ~~Company’s condition (financial or other), business, prospects, properties, net worth or results of operations, or of the happening~~ occurrence of any ~~event, which makes any statement of a material fact made in~~ such suspension or objection to the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement, the Time of Sale Information or the Prospectus (as then amended or supplemented) in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Time of Sale Information or the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time any stop order suspending the effectiveness use of the Registration Statement and, upon such issuance, occurrence or ~~any order preventing or suspending the use~~ notice of ~~the Preliminary Prospectus~~objection, ~~the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification shall be issued, the Issuers will promptly use their best efforts~~ to obtain as soon as possible the withdrawal of such stop order at or relief from such occurrence or objection, including, if necessary, and subject to the ~~earliest possible time~~first sentence of paragraph (a) of this Section 4, 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. (c) The Issuers will ~~furnish to you~~prepare a final term sheet, ~~without charge, (i) five copies~~ containing solely a description of the ~~registration statement~~ Securities and the offering thereof, substantially in the form approved by you and attached as originally filed with the Commission and of each amendment thereto, including all exhibits thereto, (ii) such number of copies of the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and any amendment or supplement thereto as you may reasonably request, (iii) such number of copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may request, (iv) such number of copies of the Incorporated Documents, without exhibits, as you may requestSchedule IV hereto, and (vwill file such term sheet pursuant to Rule 433(d) ~~five copies of~~ within the ~~exhibits to the Incorporated Documents~~time required by such Rule. (d) ~~The Issuers will not use or file any Issuer Free Writing Prospectus not included in the Time of Sale Information~~If, ~~file any amendment to the Registration Statement or make any amendment or supplement to~~ during the Prospectus or, prior to the end of the period of time referred to in paragraph (e) below, file any document which upon filing becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be used or filed, you shall reasonably object. (e) As soon as possible after the execution and delivery of this Agreement and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer, the Issuers will expeditiously deliver to the Underwriters and each dealer, without charge, as many copies of the Preliminary Prospectus and the Prospectus (and of any amendment or supplement thereto) and each Issuer Free Writing Prospectus as you may reasonably request. The Issuers consent to the use of the Preliminary ProspectusDelivery Period, any Issuer Free Writing Prospectus, the use of which is permitted hereby, and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or blue sky laws of the jurisdictions in which the Securities are offered by any Underwriter and by all dealers to whom Securities may be sold, both in connection with the offering and sale of the Securities and, in the case of the Prospectus, for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or any dealer. (1) If during the period of time referred to in paragraph (e) above any event ~~shall occur~~ occurs as a result of which, in the ~~judgment of~~ Final Prospectus, the Issuers or the Underwriters, it becomes necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or supplement the Prospectus to comply with the Act Disclosure Package or any ~~other law, the Issuers will forthwith prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate amendment or supplement to the~~ Issuer Free Writing Prospectus so that the statements in the Prospectus, as so amended or supplemented, will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with law, and to furnish to the Underwriters and to such dealers as you shall specify such number of copies thereof as the Underwriters or such dealers may reasonably request and (2) if at any time prior to the Time of Sale (i) any event shall occur or condition shall exist as a result of which, in the judgment of the Issuers or the Underwriters, the Time of Sale Information 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~~circumstances under which they were made not misleading, ~~not misleading~~ or ~~(ii)~~ if it is shall be necessary to amend the Registration Statement or supplement the ~~Time of Sale Information~~ Final Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus to comply with the Act or ~~any other law~~the Exchange Act or the respective rules and regulations thereunder, the Issuers promptly will ~~forthwith~~ (i) notify the Representatives of such event, (ii) prepare ~~and~~and file with the Commission, subject to the ~~provisions~~ first sentence of paragraph (da) ~~above~~of this Section 4, ~~file with the Commission (~~an amendment to the ~~extent required)~~ Registration Statement, a new registration statement or an ~~appropriate~~ amendment or supplement to the ~~Time of Sale Information so~~ Disclosure Package and the Final Prospectus that will correct such statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable and (iv) supply any supplemented Final Prospectus to the Representatives in such quantities as may be reasonably requested. (e) As soon as practicable, the Issuers will make generally available to their security holders and to the Representatives an earnings statement or statements ~~in the Time of Sale Information, as so amended or supplemented, will not, in the light~~ of the ~~circumstances when it is so delivered, be misleading, or so that~~ Company and its subsidiaries which will satisfy Section 11(a) of the ~~Time of Sale Information~~ Act and Rule 158 under the Act. (f) The Issuers will ~~comply with law, and to~~ furnish to the ~~Underwriters~~ Representatives, without charge, copies of the Registration Statement (including exhibits thereto) and, during the Prospectus Delivery Period, as many copies of any Preliminary Prospectus, the Final Prospectus and ~~to such dealers as you shall specify such number of copies thereof~~ each Issuer Free Writing Prospectus and any amendments or supplements thereto as the ~~Underwriters or such dealers~~ Representatives may reasonably request. (g) The Issuers (i) will ~~cooperate with you and with counsel~~ arrange, if necessary, for the ~~Underwriters in connection with the registration or~~ qualification of the Securities for ~~offering and~~ sale ~~by the Underwriters and by dealers~~ under the ~~securities or Blue Sky~~ laws of such jurisdictions as ~~you~~ the Representatives may ~~designate and~~ reasonably designate, (ii) will ~~file~~ maintain such ~~consents to service~~ qualifications in effect so long as required for the distribution of ~~process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however,~~ the Securities (provided that ~~in no event shall any Issuer~~ the Issuers will not be ~~obligated~~ required to qualify to do business in any jurisdiction where ~~it is~~ they are not now so qualified or to take any action ~~which~~ that would subject it them 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~~ they are not now so subject), (iii) will arrange for the determination of the legality of the Securities for purchase by institutional investors and (iv) will pay any fee of FINRA in connection with its review of the offering. (h) The Issuers will ~~make generally available~~ cooperate with the Underwriters and use their best efforts to ~~its security holders a consolidated earnings statement, which need not~~ permit the Securities to be ~~audited, covering a twelve-month period commencing after the date of the Prospectus~~ eligible for clearance and ~~ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act~~ settlement through Clearstream and ~~Rule 158 thereunder, and will advise you in writing when such statement has been made available~~Euroclear. (i) ~~During~~ The Issuers agree to pay the ~~period of five years hereafter, the Issuers will furnish to you as soon as available,~~ costs and expenses relating to the ~~extent not otherwise available on~~ transactions contemplated hereunder, including without limitation the Commission’s website, a copy of all public materials furnished by the Company to its stockholders and all public reports and financial statements furnished by the Company to the principal national securities exchange upon which the common stock of the Company may be listed pursuant to requirements of or agreements with such exchange or to the Commission. (j) The Company will apply the net proceeds from the sale of the Securities in accordance with the description set forth in the Time of Sale Information and the Prospectus under the caption “Use of Proceeds.” (k) Neither the Company nor any of its subsidiaries has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities to facilitate the sale or resale of the Securities. (l) The Issuers, jointly and severally, will pay all costs, expenses, fees and taxes incident to following: (i) the preparation, printing, filing and distribution under the Act of the Registration Statement (including financial statements and exhibits), and all amendments and supplements thereto prior to or during the period specified in paragraph (e) above, (ii) the preparation of this Agreement and the ~~Indenture~~other Transaction Documents, the issuance of the ~~Notes~~ Securities and the fees of the Trustee; (ii) the preparation, printing or reproduction of and filing with the Commission of the Registration Statement, the Disclosure Package, the Final Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the ~~Preliminary Prospectus, each Issuer Free Writing Prospectus~~Registration Statement, the Disclosure Package and the Final Prospectus (and all amendments or supplements ~~thereto during~~ thereto) as may, in each case, be reasonably requested for use in connection with the ~~period specified in paragraph (e) above,~~ offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp, transfer or similar taxes in connection with the original issuance and sale of the Securities and initial resales thereof by the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, ~~the Preliminary and Supplemental Blue Sky Memoranda~~ any blue sky memorandum and all other ~~agreements, memoranda, correspondence and other~~ agreements or documents printed (or reproduced) and delivered in connection with the offering of the ~~Securities~~ Securities; (~~including in each case~~ vi) any ~~disbursements of counsel for the Underwriters relating to such printing and delivery), (v) the~~ registration or qualification of the Securities for offer and sale under the ~~securities or Blue Sky~~ blue sky laws of the several states ~~and Canada~~ or any non-U.S. jurisdiction (including ~~in each case~~ filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters relating to such registration ~~or qualification~~ and ~~memoranda~~ qualification); (vii) any filings required to be made with FINRA relating ~~thereto), (vi) filings and clearance with~~ to the ~~Financial Industry Regulatory Authority in connection with the offering~~ Securities (including filing fees and the reasonable fees and ~~disbursements~~ expenses of counsel for the Underwriters (not to exceed $25,000) relating ~~thereto~~to such registration and qualification); (viii) transportation and other expenses incurred by or on behalf of the Issuers’ representatives in connection with presentations to prospective purchasers of the Securities, including in roadshows; (~~vii~~ix) the ~~listing, if any,~~ fees and expenses of the Issuers’ accountants and the fees and expenses of counsel (including local and special counsel) for the Issuers; (x) fees and expenses incurred in connection with listing the Securities on the NYSE; (xi) any national securities exchange and (viii) furnishing such copies of the Registration Statement, the Preliminary Prospectus, each Issuer Free Writing Prospectus, the Prospectus and all amendments and supplements thereto as may be requested for use fees payable in connection with the ~~offering or sale~~ rating of the Securities with the ratings agencies; and (xii) all other costs and expenses incident to the performance by the Issuers of their obligations hereunder. The Issuers will 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). Except as provided in this Agreement, the Underwriters or shall pay their own expenses relating to the transactions contemplated hereunder. Each Underwriter agrees to pay the portion of such expenses represented by ~~dealers~~ such Underwriter’s pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name in Schedule II bears to ~~whom~~ the aggregate principal amount of Securities ~~may be sold~~set forth opposite the names of all Underwriters) of the Securities (with respect to each Underwriter, the “Pro Rata Expenses”). (mj) ~~The~~ During the Prospectus Delivery Period, the Issuers will not during the period beginning on the date hereof and continuing to and including the date which is the first business day after the Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of any of the Issuers or any warrants, options or other rights to purchase or acquire debt securities of any of the Issuers or any securities convertible into or exchangeable for debt securities of any of the Issuers (other than the Securities)not, without the prior written consent of the Representatives, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus where, as a result of such preparation, use, authorization, approval or reference, the Issuers would be required to file the Issuer Free Writing Prospectus with the Commission or retain the Issuer Free Writing Prospectus under Rule 433 and the Issuers will not file any Issuer Free Writing Prospectus with the Commission (other than the Issuer Free Writing Prospectuses identified in Schedule III hereto, each electronic road show and any other road show that is a written communication, and any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package). Any such Free Writing Prospectus consented to by the Representatives or the Issuers is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Issuers agree that (i) they will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) they will comply 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. (k) The Issuers will not, and will not permit any of their affiliates to, resell any Securities that have been acquired by them, except for Securities resold in a new transaction registered under the Act. (l) Neither Issuer will, without the prior written consent of 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 either Issuer or any affiliate of either Issuer or any person in privity with either Issuer or any affiliate of either Issuer), 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 debt securities issued or guaranteed by such Issuer (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date. (m) Other than the appointment of Citigroup Global Markets Limited as stabilizing manager in connection with the offering of the Securities, the Issuers 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 either Issuer to facilitate the sale or resale of the Securities. (n) The Issuers will ~~use their best efforts~~ not take any action or omit to ~~do and perform all things required or necessary~~ take any action (such as issuing any press release related to ~~be done and performed under this Agreement~~ any Securities without an appropriate legend) which may result in the loss by the ~~Issuers prior to the Closing Date and to satisfy all conditions precedent to the delivery~~ Underwriters of the ~~Securities~~ability to rely on any stabilization safe harbor provided under MAR or by the U.K. Financial Conduct Authority under the FSMA. (o) The ~~Company will, pursuant to reasonable procedures developed in good faith,~~ Issuers will retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule ~~433 under~~ 433. (p) The Issuers will use the ~~Act~~net proceeds from the offering as set forth in the Disclosure Package and the Final Prospectus.

Appears in 1 contract

Samples: Underwriting Agreement (Johnson Controls International PLC)

Common use of Agreements of the Issuers Clause in Contracts