Agreements. The Bank agrees with the Dealer Manager that: (a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange Offer, the Bank will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank will promptly advise you (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated therein, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offer, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, and (vi) of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank will use its commercially reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request. (c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) If, at any time prior to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request. (e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled. (g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company. (h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer. (i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations. (j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Dealer Manager Agreement, Dealer Manager Agreement (Corpbanca/Fi)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries (which need not be audited) which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters upon request, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and reasonably request, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities (but in no event longer than one year from the date hereof) and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will notDuring the period beginning from the date hereof and continuing to and including the Closing Date, and the Company will not permit offer, sell, contract to sell or otherwise dispose of any debt securities of its Affiliates tothe Company which mature more than one year after the Closing Date and which are substantially similar to the Securities, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in without the Exchange Offer to be cancelledprior written consent of the Representatives.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Mbia Inc), Underwriting Agreement (Mbia Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSs, Securities in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, (i) any preferred securities issued or guaranteed by the Company or (ii) shares of any class of capital stock of the Company (other than the Securities) which is preferred as to be cancelledthe payment of dividends, or as to the distribution of assets upon any liquidation or dissolution of the Company, over shares of any other class of capital stock of the Company or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Southern California Edison Co), Underwriting Agreement (Southern California Edison Co)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form to which the Representatives do not reasonably object with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Except as set forth in the Prospectus, the Company will not, and will not permit without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or would reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any person controlled by the Company directly or indirectly, including the filing (or participation in the filing) of a registration statement (except for a registration statement on Form S-8 relating to the 2004 Incentive Award Plan or a registration statement on Form S-4 relating to an acquisition of a real property company) 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 Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, or publicly announce an intention to be cancelledeffect any such transaction, provided, however, that the Company may (i) grant stock options, restricted stock or long-term incentive units to employees, consultants or directors pursuant to the terms of a plan in effect at the Execution Time, (ii) issue Common Stock pursuant to: (A) the exercise of such options; (B) the redemption of Units issued upon conversion of such long-term incentive units; (C) the exercise of any employee stock options outstanding at the Execution Time; or (D) the redemption of Units issued upon conversion of long-term incentive units outstanding at the Execution Time, (iii) issue Common Stock pursuant to the Company’s dividend reinvestment plan (if any), and (iv) issue Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of real property or real property companies. Notwithstanding the foregoing, if: (x) during the last 17 days of the 180-day lock-up period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the 180-day lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day lock-up period, the restrictions described above shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(g) The Bank Until and including the Closing Date or the settlement date for the Option Securities (whichever is later), the Company will cooperate comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Dealer Manager Sarbanes Oxley Act, and will use its commercially reasonably reasonable best efforts to permit cause the Registered ADSs Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act, except for such failures to comply that would not individually or in the aggregate reasonably be eligible for clearance expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and settlement through The Depository Trust Companyits subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(h) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (“NASD”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder.
(j) The Company and the Operating Partnership will use the net proceeds received by the Company from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(k) The Company will use its best efforts to meet the requirements to qualify, for the taxable year ending December 31, 2004, for taxation as a REIT under the Code.
(l) The Company agrees to pay (i) all fees and disbursements of counsel incurred by the Underwriters in connection with the Exchange Offer.
Directed Share Program, (iii) The Bank all costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Share Program material and (iii) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with Citigroup Global Markets Inc. that the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program.
Appears in 2 contracts
Samples: Underwriting Agreement (Digital Realty Trust, Inc.), Underwriting Agreement (Digital Realty Trust, Inc.)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following With the declaration of effectiveness of each consent of the Registration Statement and the ADR Registration StatementRepresentatives, the Bank Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof Prospectus Supplement to be declared effective by filed pursuant to Rule 424(b) and/or Rule 434 under the Commission, Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to cause the Registered ADSs Debt Securities is required to be approved for listing on delivered under the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferAct, the Bank Company will not file promptly advise the Representatives (xi) when any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank will promptly advise you (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when any subsequent supplement to the Exchange Offer Prospectus (including documents deemed to be incorporated by reference into the Prospectus, and any supplement thereto or any document incorporated therein, shall have ) has been filed (if required) with the Commission pursuant to Rule 424(b)filed, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offer, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of or supplement to the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, and (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding proceedings for any such purpose, and (vi) of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such that purpose. The Bank Company will not file any amendment of the Registration Statement or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) unless the Company has furnished to the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement to which the Representatives reasonably object. The Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateDebt Securities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary at any time to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules and regulations of the Commission thereunder, the Bank will Company promptly: , subject to paragraph (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iiia) of this sentence; (ii) Section 4, will prepare and file an amendment or supplement that to the Prospectus with the Commission or will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance; .
(c) The Company will make generally available to its security holders and (iii) supply any such amendment or supplement to the Dealer Manager Representatives a consolidated earnings statement (which need not be audited) of the Company, for a twelve-month period beginning after the date of the Prospectus Supplement filed pursuant to Rule 424(b) and/or Rule 434 under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the "effective date of the Registration Statement" (as defined in Rule 158(c) under the Act), which will satisfy the provision of Section 11(a) of the Act and counsel for the Dealer Manager without charge rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(d) The Company will furnish to each of the Representatives a signed copy of the Registration Statement as originally filed and of each amendment thereto, including the Form T-1 of the Trustee and all powers of attorney, consents and exhibits filed therewith (other than exhibits incorporated by reference), and will deliver to the Representatives conformed copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, all amendments of and supplements to such documents, in each case as soon as available and in such quantities as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with furnish such information, execute such instruments and take such action as may be required to qualify the Dealer Manager to arrange, if necessary, Debt Securities for the qualification of the Registered ADSs for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Debt Securities; provided PROVIDED that in no event the Company shall the Bank not be obligated required to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank So long as the Debt Securities are outstanding, the Company will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will furnish (or cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelledfurnished) to each of the Representatives, upon request, copies of (i) all reports to stockholders of the Company and (ii) all reports and financial statements filed with the Commission or any national securities exchange.
(g) The Bank will cooperate with During the Dealer Manager and use its commercially reasonably best efforts to permit period beginning from the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation date of this Agreement and continuing to the Registered Deposit AgreementClosing Date, the deposit Company will not offer, sell, or otherwise dispose of any Debt Securities of the Registered ADSs Company (except under prior contractual commitments which have been disclosed to the Registered Deposit AgreementRepresentatives), without the issuance prior written consent of the ADSs representing such deposited sharesRepresentatives, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, which consent shall not be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offerunreasonably withheld.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Northern States Power Co /Wi/), Underwriting Agreement (Northern States Power Co /Wi/)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:: -----------
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSs, Securities in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to be cancelledeffect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Southern California Edison Co), Underwriting Agreement (Southern California Edison Co)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided PROVIDED that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and the Company will cause its officers, directors and shareholders not permit any of its Affiliates to, resell without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of this Underwriting Agreement, PROVIDED, HOWEVER, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank Company will pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(j) In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc. will notify the Company as to which Participants will need to be so restricted. The Company will direct the removal of such transfer restrictions upon the expiration of such period of time. Furthermore, the Company covenants with Xxxxxxx Xxxxx Xxxxxx Inc. that the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program.
Appears in 2 contracts
Samples: Underwriting Agreement (Tripath Technology Inc), Underwriting Agreement (Tripath Technology Inc)
Agreements. The Bank Each of the Company and the Trust agrees with the Dealer Manager thatseveral Underwriters:
(a) Following To prepare the declaration of effectiveness of each of the Registration Statement and the ADR 462(b) Registration Statement, if necessary, in a form approved by the Bank will use its best efforts Representatives and to maintain the effectiveness of the file such 462(b) Registration Statement and with the ADR Registration Statement, to cause any amendment thereof to be declared effective by Commission on the Commission, and date hereof; to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange Offer, the Bank will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Final Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to Rule 424 as required thereby and promptly to advise the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank will promptly advise you Representatives (iA) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424, (B) when any amendment to the Registration Statement and relating to the ADR Registration Statement, and any amendment thereto, Securities shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated therein, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offer, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (ivC) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, the Final Prospectus, the Basic Prospectus or the ADR Registration Statement or supplement to the Exchange Offer Prospectus any Interim Prospectus, or for any additional information, (vD) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement qualification of the Declaration, the Guarantee Agreement or the Bank becoming aware of Indenture or the institution or threatening of any proceeding proceedings for any such purpose, that purpose and (viE) of the receipt by the Bank Company or the Trust of any notification with respect to the suspension of the qualification of the Registered ADSs Securities or the Debentures for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank will ; after the date of this Agreement and prior to the termination of the offering of the Preferred Securities, not to file any amendment of the Registration Statement or amendment or supplement to the Final Prospectus (except an amendment or supplement to the Final Prospectus that is deemed to be incorporated by reference in the Final Prospectus pursuant to Item 12 of Form S-3) without the consent of the Representatives and to use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof; prior to receipt of the advice to be given by the Representatives pursuant to Section 5, not to file any document that would be deemed to be incorporated by reference in the Final Prospectus pursuant to Item 12 of Form S-3 without delivering to the Representatives a copy of the document proposed to be so filed, such delivery to be made at least 24 hours prior to such filing, and to consult with the Representatives as to any comments that the Representatives make in a timely manner with respect to the document so delivered.
(b) The Bank will furnish Subject to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies last sentence of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offerimmediately preceding paragraph, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) Ifif, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Securities Act, any event occurs as a result of which the Exchange Offer Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary at any time to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Final Prospectus to comply with applicable lawthe Securities Act or the Rules, to promptly prepare and file with the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare Commission an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance; compliance and to use its best efforts to cause any amendment of the Registration Statement containing an amended Final Prospectus to be made effective as soon as possible.
(c) To deliver to the Representatives, without charge, (i) signed copies of the Registration Statement relating to the Securities and of any amendments thereto (including all exhibits filed with, or incorporated by reference in, any such document) and (iiiii) supply as many conformed copies of the Registration Statement and of any amendments thereto which shall become effective on or before the Closing Date (excluding exhibits) as the Representatives may reasonably request.
(d) During such amendment period as a prospectus is required by law to be delivered by an Underwriter or supplement dealer, to deliver, without charge to the Dealer Manager Representatives and counsel for the Dealer Manager without charge in to Underwriters and dealers, at such quantities office or offices as the Dealer Manager Representatives may designate, as many copies of the Basic Prospectus, any Interim Prospectus and the Final Prospectus as the Representatives may reasonably request.
(e) The Bank will use To make generally available to the Company's security holders and to the Representatives as soon as practicable an earnings statement (which need not be audited) of the Company and its best efforts in cooperation subsidiaries, covering a period of at least 12 months beginning after the date the Final Prospectus is filed with the Dealer Manager Commission pursuant to arrangeRule 424, if necessary, for which will satisfy the qualification provisions of Section 11(a) of the Registered ADSs Securities Act.
(f) To furnish such information, execute such instruments and take such actions as may be required to qualify the Securities and the Debentures for offer by the Dealer Manager offering and sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will to maintain such qualifications in effect so long as required for such offerthe distribution of the Preferred Securities; provided PROVIDED, HOWEVER, that in no event neither the Company nor the Trust shall the Bank be obligated required to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate So long as any Preferred Securities are outstanding, to furnish or cause to be furnished to the Representatives copies of all annual reports and current reports filed with the Dealer Manager Commission on Forms 10-K, 10-Q and use its commercially reasonably best efforts to permit 8-K, or such other similar forms as may be designated by the Registered ADSs to be eligible for clearance and settlement through The Depository Trust CompanyCommission.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and To use its best efforts to cause the Bank’s directors listing of the Preferred Securities on the New York Stock Exchange, Inc. (the "NYSE") to be approved as soon as possible.
(i) For a period beginning at the time of execution of this Agreement and officersending 30 business days thereafter, in their capacities as suchwithout the prior consent of Xxxxxx Brothers Inc., not to comply with such lawsdirectly or indirectly offer, rules and regulationssell, offer to sell, grant any option for the sale of or otherwise dispose of any Preferred Securities or Debentures or any securities convertible or exchangeable into, or exercisable for Preferred Securities or Debentures, or any debt securities substantially similar to the Debentures or any equity securities substantially similar to the Preferred Securities.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish To use its best efforts to do and perform all things to be done and performed hereunder prior to each Closing Date and to satisfy all conditions precedent to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities delivery of the Bank is listed and Preferred Securities to be purchased hereunder.
(iik) such additional information concerning the business and financial condition of the Bank So long as the Dealer Manager may from time Preferred Securities are outstanding, to time reasonably request (take such statements steps as shall be necessary to be on a consolidated basis ensure that neither the Company nor the Trust shall become subject to registration as an "investment company" under the extent the accounts Investment Company Act of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)1940, as amended.
Appears in 2 contracts
Samples: Underwriting Agreement (Oge Energy Capital Trust Ii), Underwriting Agreement (Oge Energy Capital Trust I)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed prescribed, and with the Registrar of Companies in Bermuda, and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative: (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, ; (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), ) or when any Rule 462(b) Registration Statement shall have been filed with the Commission; (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, ; (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, ; (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such that purpose, ; and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company will promptly: (1) notify the Representative of such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representative and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrangeefforts, if necessary, to qualify the Securities for the qualification of the Registered ADSs for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate and will to maintain such qualifications in effect so long as required for such offerthe distribution of the Securities (not to exceed one year from the date hereof), and the Company will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided provided, however, that in no event the Company shall the Bank not be obligated to qualify to do business as a foreign corporation in any jurisdiction in which it is not now so qualified or to take any action that would subject it file a consent to service of process or to file annual reports or to comply with any other requirements in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt connection with such qualification deemed by the Bank of any notification with respect Company to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposebe unduly burdensome.
(f) The Bank Company will notendeavor, by the Closing Date, to obtain authorization for listing of the Securities on the New York Stock Exchange, subject only to official notice of issuance, if and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted as specified in the Exchange Offer to be cancelledthis Agreement.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Renaissancere Holdings LTD), Underwriting Agreement (Renaissancere Holdings LTD)
Agreements. The Bank agrees Companies agree with the Dealer Manager you that:
: (a) Following The Companies will each use their reasonable best efforts to cause the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, if not effective at the Bank will use its best efforts Execution Time, and any amendment thereof, to maintain the effectiveness of the Registration Statement become effective and the ADR Registration Statement, to cause any amendment thereof Pass Through Trust Agreement to be declared effective by qualified under the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock ExchangeTrust Indenture Act. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange Offer, the Bank The Companies will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing unless the Companies have furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Companies will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank Companies will promptly advise you (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferPass Through Certificates, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose (and (vi) each of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Companies agree that it will each use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
), (bvi) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank Companies of any notification with respect to the suspension of the qualification of the Registered ADSs Pass Through Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
purpose and (fvii) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in during the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses period when a prospectus relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).Pass Through Certificates is
Appears in 2 contracts
Samples: Underwriting Agreement (Union Tank Car Co), Underwriting Agreement (Union Tank Car Co)
Agreements. The Bank agrees Company and the Guarantor jointly and severally agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement The Company and the ADR Guarantor will use their best efforts to cause the Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereto, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company and the Guarantor will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company and the Guarantor have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantor will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed prescribed; will prepare a final term sheet, containing solely a description of the Securities in a form approved by you and will file such term sheet pursuant to Rule 433(d) within the time period prescribed; will promptly file all other material required to be filed by the Company and the Guarantor with the Commission pursuant to Rule 433(d) and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company and the Guarantor will promptly advise you the Representatives (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when any Issuer Free Writing Prospectus shall have been field with the Commission, (iv) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (ivv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional information, (vvi) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vivii) of the receipt by the Bank Company or the Guarantor of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company and the Guarantor will use its commercially reasonable their best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered (or in lieu thereof, the Dealer Managernotice referred to in Rule 173(a) under the Act) under the Act, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company and any amendments the Guarantor promptly will prepare and supplements thereto in file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such quantities as the Dealer Manager may reasonably requeststatement or omission or effect such compliance.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Guarantor and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company and the Guarantor will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company and the Guarantor will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company and the Guarantor will use its their best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that in no event neither the Company nor the Guarantor shall the Bank be obligated required to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is where they are not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Until the business day following the Closing Date, the Company and the Guarantor will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in without the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses consent of the Bank’s counsel and accountants in connection with Representatives, offer, sell or contract to sell, or announce the offering of, any debt securities covered by the Registration Statement or any other registration of the Registered ADSs statement filed under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange OfferAct.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (PNC Financial Services Group Inc), Underwriting Agreement (PNC Financial Services Group Inc)
Agreements. The Bank Each of the Company and each of the Selling Shareholders, in each case as noted in this Section 5, agrees with the Dealer Manager each Underwriter that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank The Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement of any notice objecting to its use or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal thereofof such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Datefiling of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it should shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the ADR Registration Statement or the Exchange Offer Final Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Bank Company promptly will promptly: (i) notify the Dealer Manager Representatives of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement that or new registration statement which will correct such statement or omission or effect such compliance; and , (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any such amendment or supplement supplemented Final Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Bank Company will use its best efforts furnish to the Representatives and counsel for the Underwriters, without charge, a reasonable number of copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in cooperation with circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Dealer Manager Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Selling Shareholders will pay the reasonable expenses of printing or other production of all documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to any taxation of its income or any service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate Each of the Company and the Selling Shareholders agrees that, unless it has or shall have obtained the prior written consent (not to be unreasonably withheld) of the Representatives, and each Underwriter, severally and not jointly, agrees with the Dealer Manager Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and use its commercially reasonably best efforts will not make any offer relating to permit the Registered ADSs Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be eligible for clearance filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule B hereto and settlement through any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Depository Trust CompanyCompany agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h) During a period of 60 calendar days from the date of this Agreement, the Company will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The Bank agrees foregoing sentence shall not apply to (a) the Securities to be sold hereunder, (b) any shares of Common Stock issued by the Company upon the exercise of an option or warrant, the vesting of any restricted stock or restricted stock unit (including, for the avoidance of doubt, any performance-based restricted stock unit) or the conversion of a security outstanding on the date hereof (including, for the avoidance of doubt, any Class A stock of the Company), (c) any shares of Common Stock, restricted stock, restricted stock units (including, for the avoidance of doubt, any performance-based restricted stock units) or any securities convertible into or exercisable or exchangeable for Common Stock issued or options to purchase Common Stock granted pursuant to the Company’s long-term incentive plans referred to or incorporated by reference into the Disclosure Package and the Final Prospectus (including, for the avoidance of doubt, those that remain subject to shareholder approval), (d) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to or incorporated by reference into the Disclosure Package and the Final Prospectus, (e) the filing of a registration statement or prospectus supplement in compliance with the request of any person who has the right, as of the date hereof, to require the Company to file such registration statement or prospectus supplement, (f) shares of Common Stock (or securities convertible into or exchangeable for shares of Common Stock) issued in connection with the bona fide strategic acquisition of assets, a technology or a business or the bona fide establishment of a strategic partnership or collaboration (including a joint venture) complementary to the Company’s business, or (g) any registration statement on Form S-8 under the Act with respect to the foregoing clauses (c) or (d) or on Form S-4 under the Act with respect to the foregoing clause (f). Nothing contained herein shall limit or restrict the sale of Common Stock of the Company held in a fiduciary capacity by Affiliates of the Company on behalf of their respective clients acting in such fiduciary capacity.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company will use its best efforts to effect and maintain the listing of the Securities on the Nasdaq Global Select Market.
(k) The Company, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the regulations of the Commission promulgated thereunder.
(l) The Selling Shareholders agree to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Final Prospectus and amendments each Issuer Free Writing Prospectus, and supplements thereto each amendment or supplement to any of them; (ii) the printing (or reproduction) and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration, if any, of the Securities under the Exchange Act; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualificationqualification in an amount not to exceed $25,000 (excluding filing fees)); (vivii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $25,000 (excluding filing fees)); (viii) the reasonable and documented transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other reasonable and documented costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder. The provisions of this subsection (l) shall not affect any agreement that the Company and the Selling Shareholders have made or may make for the sharing of such costs and expenses.
(m) The Selling Shareholders will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters and (ii) the fees and disbursements of their respective counsel and other advisors. The provisions of this subsection (m) shall not affect any agreement that the Company and the Selling Shareholders have made or may make for the sharing of such costs and expenses.
(n) Each of the Selling Shareholders will deliver to the Representatives (or their agent), on or prior to the date of execution of this Agreement, a properly completed and executed FinCEN Certification, together with copies of identifying documentation, of such Selling Shareholder and such Selling Shareholder undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities verification of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)FinCEN Certification.
Appears in 2 contracts
Samples: Underwriting Agreement (Sanofi), Underwriting Agreement (Regeneron Pharmaceuticals, Inc.)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with or any Rule 462(b) Registration Statement unless the Company has furnished the Representative a copy of for the Representative’s review prior to filing and will not file any such proposed amendment or supplementsupplement to which the Representative reasonably objects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Datefiling of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as the Representative may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Securities Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representative of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge Representative in such quantities as the Dealer Manager Representative may reasonably request.
(d) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representative, which consent will not be unreasonably withheld, it will not make, any offer relating to the Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule C hereto and any electronic road show. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(e) The Bank Company will use its best efforts to list, subject to notice of issuance, the Securities on the New York Stock Exchange.
(f) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(g) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Securities in cooperation such a manner as would require the Company or any of its Subsidiaries to register as an investment company under the Investment Company Act.
(h) During the time when a prospectus relating to the Securities is required to be delivered under the Securities Act the Company shall file, on a timely basis, with the Dealer Manager Commission and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act. Additionally, the Company shall report the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the Act.
(i) The Company will furnish to the Representative and counsel for the Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request.
(j) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fk) The Bank Company will not, and will not permit without the prior written consent of the Representative, for a period of 90 days after the date of this Agreement, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or would reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company directly or indirectly, including the filing (or participation in the filing) of a registration statement (except for a registration statement on Form S-8 relating to the 2005 Equity Incentive Plan, registration statement on Form S-3 (File No. 333-139706) relating to the sale of common stock from time to time by the selling stockholders specified therein and any amendments thereto, or registration statement on Form S-4 relating to our acquisition of another real property company) 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 Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, or publicly disclose an intention to be cancelledeffect any such transaction, provided, however, that the Company may (i) grant stock options, restricted stock or long-term incentive units to employees, consultants or directors pursuant to the terms of a plan in effect at the Execution Time, (ii) issue Common Stock pursuant to: (A) the exercise of such options; (B) the redemption of Units issued upon conversion of such long-term incentive plan units; (C) the exercise of any employee stock options outstanding at the Execution Time; or (D) the redemption of Units issued upon conversion of long-term incentive plan units outstanding at the Execution Time, (iii) issue Common Stock pursuant to the Company’s dividend reinvestment plan (if any), and (iv) issue Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of real property or real property or property management companies. Notwithstanding the foregoing, if: (x) during the last 17 days of the 90-day lock-up period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the 90-day lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day lock-up period, the restrictions described above shall continue to apply until the expiration of the 18-day period beginning on the date of the issuance of the earnings release or the occurrence of the material news or material event.
(gl) The Bank Company will cooperate comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Dealer Manager Sarbanes Oxley Act, and will use its commercially reasonably best efforts to permit cause the Registered ADSs Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act, except where the failure to comply or to cause the Company’s directors and officers to comply with such laws would not reasonably be eligible for clearance expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and settlement through The Depository Trust Companyits Subsidiaries taken as a whole.
(hm) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(n) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Prospectus and amendments each Issuer Free Writing Prospectus, and supplements thereto each amendment or supplement to any of them; (ii) the printing (or reproduction) and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) any filings required to be made with the National Association of Securities Dealers, Inc. (“NASD”) (including filing fees and the reasonable fees and expenses incurred in connection with listing of counsel for the Registered ADSs on Underwriters relating to such filings); (viii) the New York Stock Exchangefees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (viiiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(io) The Bank Company and the Operating Partnership will comply with all applicable securities and other laws, rules and regulations, including, without limitation, use the Sarbanes Oxley Act, and net proceeds received by the Company from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(p) The Company will use its best efforts to cause meet the Bank’s directors and officers, in their capacities as such, requirements to comply with such laws, rules and regulations.
(j) The Bank willqualify, for the taxable year ending December 31, 2007, for taxation as a period of twelve months following REIT under the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Code.
Appears in 2 contracts
Samples: Underwriting Agreement (Cogdell Spencer Inc.), Underwriting Agreement (Cogdell Spencer Inc.)
Agreements. The Bank Each of the Transaction Entities, jointly and severally, agrees with the Dealer Manager that:
(a) Following During any period when the declaration delivery of effectiveness of each a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172) to be delivered under the Act, the Transaction Entities will not file any amendment of the Registration Statement or supplement (including the Prospectus Supplement) to the Base Prospectus unless the Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which the ADR Registration StatementManager reasonably objects, except for a supplement relating to an underwritten public offering, a registered direct offering or secondary offering of securities that does not relate to the Bank will use its best efforts to maintain Shares. The Transaction Entities have properly completed the effectiveness of the Registration Statement and the ADR Registration StatementProspectus, to cause any amendment thereof to be declared effective in a form approved by the CommissionManager, and to cause filed such Prospectus, as amended at the Registered ADSs to be approved for listing on Execution Time, with the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs Commission pursuant to the Exchange Offer, applicable paragraph of Rule 424(b) by the Bank Execution Time and will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) cause any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, be properly completed, in a form approved by the Manager, and any will file such supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to you the Manager of such timely filing. The Bank Transaction Entities will promptly advise you the Manager (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172 or any similar rule) is required under the Act in connection with the offering or sale of the offering of the Registered ADSs pursuant to the Exchange OfferShares, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement of any notice objecting to its use or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by either of the Bank Transaction Entities of any notification with respect to the suspension of the qualification of the Registered ADSs Shares for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Each of the Transaction Entities will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal thereofof such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time on or after an Applicable Time but prior to the related Settlement DateDate or Time of Delivery, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade or the circumstances then prevailing not misleading, the Transaction Entities will (i) notify promptly the Manager so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the Manager in such quantities as the Manager may reasonably request.
(c) During any period when the delivery of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172) to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it should shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Prospectus, the Bank Company promptly will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement that or new registration statement which will correct such statement or omission or effect such compliance; and , (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(i) As soon as practicable, the Company will make generally available to its security holders and to the Manager an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(ii) If either of the Transaction Entities makes any public announcement or release disclosing the Transaction Entities’ results of operations or financial condition for a completed quarterly or annual fiscal period (each, an “Earnings Release”) and the Transaction Entities have not yet filed a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K with respect to such information, as applicable, then, prior to any sale of Shares, the Transaction Entities shall be obligated to (y) file a Current Report on Form 8-K, which Form 8-K shall include the applicable financial information or (z) furnish a Current Report on Form 8-K pursuant to Item 2.02 thereof, which current report shall specifically state that the applicable financial information shall be deemed “filed” under the Exchange Act.
(e) The Bank Company will use its best efforts furnish to the Manager and counsel for the Manager, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Manager or dealer may be required by the Act (including in cooperation with circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of the Dealer Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Manager may reasonably request. The Transaction Entities jointly and severally agree to pay the expenses of printing or other production of all documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Registered ADSs Shares for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Shares; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsShares, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate Each of the Transaction Entities agrees that, unless it has or shall have obtained the prior written consent of the Manager, and the Manager agrees with the Dealer Manager Transaction Entities that, unless it has or shall have obtained, as the case may be, the prior written consent of the Transaction Entities, it has not made and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses will not make any offer relating to the following matters: Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (ias defined in Rule 405) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof required to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities retained by the Transaction Entities under Rule 433; provided that the prior written consent of the Bank is listed and (ii) such additional information concerning the business and financial condition parties hereto shall be deemed to have been given in respect of the Bank Free Writing Prospectuses, if any, included in Schedule I hereto. Any such free writing prospectus consented to by the Manager or the Transaction Entities, as applicable, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Transaction Entities agrees that (i) it has treated and will treat, as the Dealer Manager case may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and
Appears in 2 contracts
Samples: Equity Distribution Agreement (Liberty Property Limited Partnership), Equity Distribution Agreement (Liberty Property Limited Partnership)
Agreements. The Bank agrees Company and the Guarantor jointly and severally agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement The Company and the ADR Guarantor will use their best efforts to cause the Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereto, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company and the Guarantor will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company and the Guarantor have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantor will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed prescribed; will prepare a final term sheet, containing solely a description of the Securities in a form approved by you and will file such term sheet pursuant to Rule 433(d) within the time period prescribed; will promptly file all other material required to be filed by the Company and the Guarantor with the Commission pursuant to Rule 433(d) and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company and the Guarantor will promptly advise you the Representatives (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when any Issuer Free Writing Prospectus shall have been filed with the Commission, (iv) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (ivv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional information, (vvi) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vivii) of the receipt by the Bank Company or the Guarantor of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company and the Guarantor will use its commercially reasonable their best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered (or in lieu thereof, the Dealer Managernotice referred to in Rule 173(a) under the Act) under the Act, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company and any amendments the Guarantor promptly will prepare and supplements thereto in file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such quantities as the Dealer Manager may reasonably requeststatement or omission or effect such compliance.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Guarantor and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company and the Guarantor will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company and the Guarantor will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company and the Guarantor will use its their best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that in no event neither the Company nor the Guarantor shall the Bank be obligated required to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is where they are not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Until the business day following the Closing Date, the Company and the Guarantor will not, and will not permit without the consent of the Representatives, offer, sell or contract to sell, or announce the offering of, any of its Affiliates to, resell debt securities covered by the Registration Statement or any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in other registration statement filed under the Exchange Offer to be cancelledAct.
(g) The Bank Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and all expenses relating incident to the following mattersperformance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Bank’s their counsel and the accountants in connection with the registration issuance and sale of the Registered ADSs under the Act Securities and all other fees or expenses in connection with the preparation, printing and filing with the Commission preparation of the Registration StatementPreliminary Final Prospectus, the ADR Registration Statement Pricing Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectuses prepared by or on behalf of, used by, or referred to by them and the Exchange Offer Prospectus and any amendments and supplements thereto to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as mayUnderwriters, in each casethe quantities herein above specified, be reasonably requested (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) any fees charged by rating agencies for use the rating of the Securities, (iv) the fees and expenses, if any, incurred in connection with the conduct and consummation admission of the Exchange Offer; Securities in any appropriate market system, (iiv) the preparation of this Agreement costs and the Registered Deposit Agreement, the deposit charges of the Registered ADSs under Trustee, (vi) the Registered Deposit Agreement, the issuance cost of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance Securities and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its their obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitationSection 7, the Sarbanes Oxley ActUnderwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies transfer taxes payable on resale of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Securities by them.
Appears in 2 contracts
Samples: Underwriting Agreement (PNC Financial Services Group Inc), Underwriting Agreement (PNC Financial Services Group Inc)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is\ required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After Through the consummation timely filing of periodic reports under the Exchange OfferAct, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is such a consent has not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect been previously filed or to the suspension of the qualification of the Registered ADSs for sale subject itself to taxation in any jurisdiction or wherein it would not otherwise be subject to tax but for the initiation or threatening requirements of any proceeding for such purposethis paragraph.
(f) The Bank Company will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc. and will not permit Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person with whom the Company or any affiliate of the Company has an agreement with respect to securities of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act with respect to, any shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock, or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement, provided, however, -------- ------- that (1) the Company may issue, sell and register Common Stock pursuant to any employee stock option plan, stock ownership plan or dividendreinvestment plan of the Company in effect at the Execution Time, (2) the Company may issue Common Stock issuable upon the conversion of securities or theexercise of warrants outstanding at the Execution Time, and (3) the Company may issue Common Stock in connection with any merger, consolidation or stock or asset acquisition, so long as the recipients of the Common Stock in such transaction agree to be cancelledbound by the same lock-up restrictions as the Company.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action that constitutes or that is designed to or might reasonably be expected to cause or result in, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank agrees In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to pay the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or cause the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc. will notify the Company as to which Participants will need to be paid so restricted. The Company will direct the costs and expenses relating to removal of such transfer restrictions upon the following matters: expiration of such period of time.
(i) The Company will pay all reasonable fees and disbursements of counsel incurred by the fees, disbursements and expenses of the Bank’s counsel and accountants Underwriters in connection with the registration of Directed Share Program (including the Registered ADSs under the Act printing (or reproduction) and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof to of the Dealer ManagerDirected Share Program materials) and stamp duties, as maysimilar taxes or duties or other taxes, in each caseif any, be reasonably requested for use incurred by the Underwriters in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit AgreementDirected Share Program. Furthermore, the deposit of Company covenants with Xxxxxxx Xxxxx Xxxxxx Inc. that the Registered ADSs under the Registered Deposit AgreementCompany will comply with all applicable securities and other applicable laws, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs rules and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, regulations in each case, be reasonably requested for use foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(ii) The Selling Securityholder agrees with the several Underwriters that:
(a) The Selling Securityholder will not, without the prior written consent of Xxxxxxx Xxxxx Barney Inc. and Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Securityholder or any affiliate of the Selling Securityholder or any person with whom the Selling Securityholder or any affiliate of the Selling Securityholder has an agreement with respect to securities of the Company), directly or indirectly, or file (or participate 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 Offer; Act with respect to, any shares of capital stock of the Company (iiiother than the Securities) or any securities convertible into, or exercisable or exchangeable for, such capital stock, or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement, other than any shares of Common Stock disposed of as bona fide gifts approved by Xxxxxxx Xxxxx Xxxxxx Inc., any shares of Common Stock pledged to Crown's creditors or sold upon foreclosure by Crown's creditors or in connection with an acquisition of a majority of the voting power of Constar by a third party not affiliated with Crown or Constar.
(b) The Selling Securityholder will not take, directly or indirectly, any action that constitutes or that is designed to or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) The Selling Securityholder will advise the Representatives promptly, and if requested by the Representatives, will confirm such advice in writing, (1) until the Closing Date, of any material change in the Company's condition (financial or otherwise), earnings, business or properties or any new material information relating to the Company or relating to any matter stated in the Prospectus which comes to the attention of the Selling Securityholder and (2) so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement or the Prospectus relating to the Selling Securityholder.
(d) The Selling Securityholder agrees to pay the costs and expenses relating to the following matters: (1) the preparation, printing, authentication, issuance printing or reproduction and delivery of certificates for the Securities, including any stamp or transfer taxes in connection filing with the original issuance and sale Commission of the SecuritiesRegistration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each amendment or supplement to any of them; (iv2) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (3) the delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the sale of the Securities; (4) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi7) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (8) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (vii9) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's and the New York Stock ExchangeSelling Securityholder's accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Securityholder; and (viii10) all other costs and expenses incident to the performance by the Bank Company and the Selling Securityholder of its their obligations hereunder hereunder.
(iii) Each Underwriter severally represents and agrees that:
(a) it has not offered or sold and, prior to the expiry of six months from the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(b) it has only communicated and caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 ("FSMA")) received by it in connection with the Exchange Offer.issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(ic) The Bank it has complied and will comply with all applicable securities and other lawsprovisions of the FSMA with respect to anything done by it in relation to the Securities in, rules and regulations, including, without limitation, from or otherwise involving the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.United Kingdom; and
(jd) the offer in The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities Netherlands of the Bank Securities is listed exclusively limited to persons who trade or invest in securities in the conduct of a profession or business (which include banks, stockbrokers, insurance companies, pension funds, other institutional investors and (ii) such additional information concerning the business finance companies and financial condition treasury departments of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholderslarge enterprises).
Appears in 2 contracts
Samples: Underwriting Agreement (Constar International Inc), Underwriting Agreement (Crown Cork & Seal Co Inc)
Agreements. The Bank Company agrees with the Dealer Manager each Underwriter that:
(a) Following The Company will furnish to each Underwriter and to counsel for the declaration Underwriters, without charge, during the period referred to in paragraph (d) below, as many copies of effectiveness the Prospectus and any amendments and supplements thereto as it may reasonably request.
(b) The Company will advise the Representatives promptly, confirming such advice in writing, of each of any request by the Commission for amendments or supplements to the Registration Statement and or the ADR Registration StatementProspectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the Bank will use its best efforts to maintain entry of a stop order, suspending the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange Offer, the Bank will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentenceand, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank will promptly advise you (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated therein, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offer, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any should enter a stop order suspending the effectiveness of the Registration Statement or Statement, the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, and (vi) of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent obtain the issuance lifting or removal of such order as soon as possible. If it is necessary for any post-effective amendment to the Registration Statement to be declared effective before any Underwritten Securities may be sold, the Company will endeavor to cause such stop order and, if issued, post-effective amendment to obtain become effective as soon as possible and the withdrawal thereof.
(b) The Bank Company will furnish to advise the Dealer Manager and to counsel for the Dealer ManagerRepresentatives promptly and, without chargeif requested, during the period beginning on the Commencement Date and continuing to and including the Settlement Datewill confirm such advice in writing, copies of the Offering Documents and when any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably requestpost-effective amendment has become effective.
(c) After The Company will file promptly all reports and any definitive proxy or information statement required to be filed by the consummation of Company with the Commission in order to comply with the Exchange Offer, Act during the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(aperiod referred to in paragraph (d) of the Act and Rule 158 under the Actbelow.
(d) IfThe Company will not amend or supplement the Registration Statement or the Prospectus, other than by filing documents under the Exchange Act that are incorporated by reference therein, without the prior written consent of the Representatives; provided, however, that, prior to the completion of the distribution of the Underwritten Securities by the Underwriters (as determined by the Underwriters and communicated to the Company), the Company will not file any document under the Exchange Act that is incorporated by reference in the Registration Statement or the Prospectus unless, at a reasonable time prior to such proposed filing, the Company has furnished the Representatives with a copy of such document for their review and the Representatives have not reasonably objected to the filing of such document. The Company will promptly advise the Representatives when any document filed under the Exchange Act that is incorporated by reference in the Registration Statement or the Prospectus shall have been filed with the Commission.
(e) If at any time prior to the Settlement Datecompletion of the distribution of the Underwritten Securities by the Underwriters (as determined by the Representatives), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: Company promptly (i) will notify the Dealer Manager Representatives of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentenceevent; (ii) subject to the requirements of paragraph (d) of this Section 4, will prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any such amendment supplemented or supplement amended Prospectus to the Dealer Manager several Underwriters and counsel for the Dealer Manager Underwriters without charge in such quantities as the Dealer Manager they may reasonably request.
(ef) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Underwritten Securities for offer sale by the Dealer Manager Underwriters under the laws of such jurisdictions as the Dealer Manager Underwriters may designate and will maintain such qualifications in effect so long as required for such offerthe sale of the Underwritten Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsUnderwritten Securities, in any jurisdiction in which where it is not now so subject. The Bank Company will promptly advise the Dealer Manager Representatives of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Underwritten Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fg) The Bank Company will notmake generally available to its security holders, and to deliver to the Representatives, an earnings statement of the Company (which will not permit any satisfy the provisions of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Section 11(a) of the Act) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 144A ADSs accepted in 158(c) under the Exchange Offer to be cancelledAct) as soon as is reasonably practicable after the termination of such twelve-month period.
(gh) The Bank Company will cooperate with the Dealer Manager Representatives and use its commercially reasonably best efforts to permit the Registered ADSs Underwritten Securities to be eligible for clearance and settlement through The Depository Trust Company.
(hi) During the period beginning on the Execution Time and continuing to and including the respective Closing Date, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or warrants to purchase debt securities of the Company substantially similar to the Underwritten Securities (other than (i) the Underwritten Securities and (ii) commercial paper issued in the ordinary course of business), without the prior written consent of the Underwriters.
(j) The Bank Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Underwritten Securities.
(k) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses preparation of the Bank’s counsel and accountants in connection with Indenture, the registration issuance of the Registered ADSs under Underwritten Securities and the Act and all other expenses in connection with fees of the Trustee; (ii) the preparation, printing and filing with the Commission or reproduction of the Registration Statement, the ADR Registration Statement Preliminary Prospectus and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offeramendment or supplement thereto; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Preliminary Prospectus and the Prospectus, and all amendments or supplements thereto, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Underwritten Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Underwritten Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Underwritten Securities to the Underwriters; (v) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum Terms Agreement, any Blue Sky memorandum, the closing documents and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Underwritten Securities; (vvi) any registration or qualification of the Registered ADSs Underwritten Securities for offer and sale under the blue sky securities or Blue Sky laws of the several states or foreign laws and any non-U.S. jurisdiction other jurisdictions specified pursuant to Section 4(f) (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) if applicable, the listing of the Underwritten Securities on any securities exchange or automated quotation system; (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferUnderwritten Securities; (viiix) the fees and expenses incurred in connection of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) any filing for review of the public offering of the Underwritten Securities by the NASD, including reasonable legal fees and the filing fees and other disbursements of counsel to the Underwriters with listing respect thereto; (xi) the Registered ADSs on fees and disbursements of any transfer agent or registrar for the New York Stock ExchangeUnderwritten Securities; and (viiixii) all other costs and reasonable expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(il) The Bank Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, apply the Sarbanes Oxley Act, and use its best efforts to cause proceeds from the Bank’s directors and officers, sale of the Underwritten Securities in their capacities as such, to comply with such laws, rules and regulationsthe manner described in the Prospectus.
(jm) The Bank will, for a period of twelve months following the Commencement Date, furnish Prior to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholderscompletion of the distribution of the Underwritten Securities, and deliver to the Dealer Manager (i) as soon as they are available, copies Company will promptly notify the Representatives of any reports and financial statements furnished material development relating to or filed or submitted with the Commission or any securities exchange on which any class of securities investigation of the Bank is listed and (ii) such Company conducted by the Commission, including the discovery of any new or additional information concerning that in the business and financial condition opinion of the Bank as Company may reasonably be expected to affect the Dealer Manager may from time to time reasonably request (outcome of such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)investigation.
Appears in 2 contracts
Samples: Terms Agreement (Interpublic Group of Companies, Inc.), Terms Agreement (Interpublic Group of Companies, Inc.)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSenior Notes, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSenior Notes, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Senior Notes for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Senior Notes is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance, and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Senior Notes for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Senior Notes; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSenior Notes, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Until the Business Day set forth on Schedule I hereto, the Company will not, and will not permit without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company (other than the Senior Notes, commercial paper or other short-term debt).
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Senior Notes.
(h) The Bank agrees to pay or cause to be paid Company will issue and deliver the costs and expenses relating Collateral Bonds to the following matters: (i) Senior Trustee as security for the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, Senior Notes in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants manner described in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange OfferFinal Prospectus.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Wisconsin Public Service Corp), Underwriting Agreement (Wisconsin Public Service Corp)
Agreements. The Bank Company agrees with the Dealer Manager Underwriter that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereto, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Underwriter of such timely filing. The Bank Company will promptly advise you the Underwriter (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, and that purpose and
(vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Final Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, the Bank Company will promptly: (i) notify prepare and file with the Dealer Manager Commission, subject to the second sentence of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause paragraph (iiia) of this sentence; (ii) prepare Section 4, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iiiii) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge Underwriter in such quantities as the Dealer Manager Underwriter may reasonably request.
(c) As soon as practicable but in any event not later than 90 days after the close of the period covered thereby, the Company will make generally available to its security holders and to the Underwriter an earnings statement or statements of the Trust which will satisfy the provisions of Section 11(a) of the Act and, including, at the option of the Company, Rule 158 under the Act.
(d) The Company will furnish to the Underwriter and counsel for the Underwriter, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Underwriter may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Underwriter may designate and designate, will use its best efforts to maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated distribution of the Securities.
(f) Not, without the Underwriter's prior written consent, to qualify publicly offer or sell or contract to do business in any jurisdiction in which it is not now so qualified sell debt securities issued or to take any action that would subject it to service of process in suits, guaranteed by the Company (other than those arising out the Securities) representing interests in or secured by other auto loan-related assets originated or owned by the Company for a period of 5 business days following the commencement of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect Securities to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposepublic.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (Advanta Automobile Receivables Trust 1997-2), Underwriting Agreement (Advanta Automobile Receivables 1998-1)
Agreements. The Bank Company agrees with the Dealer Manager you that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferNotes (including by way of resale by a Purchaser of Notes), the Bank Company will not file (x) any amendment or supplement to the Registration Statement or the ADR Registration Statement Prospectus (except for (i) periodic or current reports filed under the Exchange Act, (ii) a supplement relating to any offering of Notes providing solely for the specification of or a change in the maturity dates, interest rates, issuance prices or other similar terms of any Notes or (yiii) any an amendment or a supplement relating to an offering of Securities other than the Exchange Offer Prospectus without first providing Notes) unless the Company has furnished each of you with through your counsel a copy for your review prior to filing and given each of you a reasonable opportunity to comment on any such proposed amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Company shall cause each supplement to the Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act within the time period prescribed and will shall provide evidence reasonably satisfactory to you of such timely filing. To the extent required under the Act, the Company also agrees to prepare, prior to the termination of the offering of the Notes, with respect to any Notes to be sold pursuant to this Agreement, an Issuer Free Writing Prospectus that is a Final Term Sheet, and to file such Final Term Sheet pursuant to Rule 433(d) under the Act within the time required by such rule. The Bank Company will promptly advise each of you (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or and any document incorporated therein, shall have Issuer Free Writing Prospectus has been filed (if required) with the Commission pursuant to Rule 424(b)) or Rule 433(d) under the Act, (iiiii) when, prior to termination of the any offering of the Registered ADSs pursuant to the Exchange OfferNotes, any amendment to the Registration Statement (except periodic or current reports filed under the ADR Registration Statement shall have Exchange Act) has been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of or supplement to the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for that purpose, (v) of any such purposenotice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, and (vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior following the relevant Applicable Time, when a prospectus relating to the Settlement DateNotes is required to be delivered under the Act, any event occurs as a result of which (i) the Exchange Offer Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if ; (ii) it should be is necessary to amend or supplement the Registration Statement, the ADR Prospectus, the Final Term Sheet or any Issuer Free Writing Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder or (iii) the information contained in an Issuer Free Writing Prospectus conflicts with information contained in the Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthat has not been superseded or modified, the Bank Company will promptly: promptly (ix) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Dealer Manager Company, each of any you shall forthwith suspend such event or non-compliance at which time solicitation and cease using the Dealer Manager shall be entitled Prospectus as then supplemented), (y) prepare and file with the Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause first sentence of paragraph (iiia) of this sentence; (ii) prepare Section 4, an amendment or supplement that to the Registration Statement, the Prospectus, the Issuer Free Writing Prospectus or the Final Term Sheet, which will correct such statement or omission or effect such compliance; compliance and (iiiz) supply any supplemented Prospectus, Final Term Sheet or Issuer Free Writing Prospectus to each of you in such quantities as you may reasonably request. If such amendment or supplement is satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating to the Notes is required to be delivered under the Act, will file promptly all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and, to the extent such documents are not available pursuant to the XXXXX filing system, will furnish to each of you copies of such documents.
(d) As soon as practicable, the Company will make generally available to its security holders and to each of you an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without charge, as many copies of the Registration Statement (including exhibits thereto), and, so long as delivery of a prospectus may be required by the Act, the Prospectus and each additional prospectus supplement, the Final Term Sheet, any Issuer Free Writing Prospectus, and each amendment or supplement to the Dealer Manager and counsel for Indenture entered into subsequent to the Dealer Manager without charge in such quantities date hereof, as the Dealer Manager you may reasonably request.
(ef) The Bank Company will use its reasonable best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Notes for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager any of you may designate reasonably designate, and will maintain such qualifications in effect so long as required for such offer; provided the distribution of the Notes, except that in no event the Company shall the Bank not be obligated required to qualify to do business as a foreign corporation or dealer in any jurisdiction in which it is not now so qualified securities or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelledjurisdiction.
(g) The Bank will cooperate with Company shall, whether or not any sale of the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: Notes is consummated, (i) pay all expenses incident to the feesperformance of its obligations under this Agreement and any Terms Agreement, including the fees and disbursements of its accountants and expenses counsel, the cost of the Bank’s counsel printing or other production and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission delivery of the Registration Statement, the ADR Registration Statement Prospectus, all amendments thereof and supplements thereto, the Supplemental Indenture, the Final Term Sheet, any Issuer Free Writing Prospectus, this Agreement, any Terms Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements of your counsel incurred in compliance with Section 4(f) (such fees not to exceed $10,000), the fees and disbursements of the Trustee and the Exchange Offer Prospectus and amendments and supplements thereto and fees of any agency that rates the mailing and delivering Notes, (ii) reimburse each of you as requested for all out-of-pocket expenses (including postagepre-approved advertising expenses), air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Managerif any, as may, in each case, be reasonably requested for use incurred by you in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation implementation of this Agreement program and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and pay the reasonable fees and expenses of your counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on implementation of this program.
(h) Each acceptance by the New York Stock Exchange; Company of an offer to purchase Notes will be deemed to be an affirmation that its representations and warranties contained in this Agreement are true and correct at the time of such acceptance, as though made at and as of such time, and a covenant that such representations and warranties will be true and correct at the Closing Date relating to such acceptance, as though made at and as of such time (viii) all other costs it being understood that for purposes of the foregoing affirmation and expenses incident covenant such representations and warranties shall relate to the performance Registration Statement, the Prospectus as amended or supplemented at each such time and any Issuer Free Writing Prospectus relating to the Notes). Each such acceptance by the Bank Company of its obligations hereunder an offer for the purchase of Notes shall be deemed to constitute an additional representation, warranty and in connection with agreement by the Exchange OfferCompany that, as of the Closing Date for the sale of such Notes, after giving effect to the issuance of such Notes, of any other Notes to be issued on or prior to such Closing Date and of any other Securities to be issued and sold by the Company on or prior to such Closing Date, the aggregate amount of Securities (including any Notes) which have been issued and sold by the Company will not exceed the amount of Securities registered pursuant to the Registration Statement. The Company will inform you promptly upon your request of the aggregate amount of Securities registered under the Registration Statement which remain unsold.
(i) The Bank will comply Each time the Company files with all applicable securities and other laws, rules and regulations, including, without limitationthe Commission an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q or a material amendment or supplement thereto, the Sarbanes Oxley Act, and use its best efforts Company shall deliver or cause to cause be delivered promptly to you a certificate of the Bank’s directors and officersCompany, in their capacities form reasonably satisfactory to you, signed by the Chief Executive Officer or the President or the principal financial or accounting officer of the Company, dated the date of filing of such report or material amendment or supplement thereto, of the same tenor as such, the certificate referred to comply with in Section 5(d) but modified to relate to the Registration Statement and the Prospectus as amended or supplemented to such laws, rules and regulationsdate.
(j) The Bank will, for a period of twelve months following Each time the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted Company files with the Commission an Annual Report on Form 10-K or any securities exchange a Quarterly Report on which any class Form 10-Q or a material amendment or supplement thereto, the Company shall furnish or cause to be furnished promptly to you written opinions of securities counsel for the Company, in form reasonably satisfactory to you, dated the date of filing of such report or material amendment or supplement thereto, of the Bank is listed same tenor as the opinions referred to in Section 5(b) but modified to relate to the Registration Statement as of its then most recent effective date and the Prospectus as amended or supplemented to the date of filing of such report or material amendment or supplement thereto or, in lieu of such opinions, counsel last furnishing such opinions to you may furnish you with a letter to the effect that you may rely on such last opinions to the same extent as though they were dated the date of such letter authorizing reliance (iiexcept that statements in such last opinions will be deemed to relate to the Registration Statement as of its then most recent effective date and the Prospectus as amended or supplemented to the date of filing of such report or material amendment or supplement thereto).
(k) Each time the Company files with the Commission an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q or a material amendment or supplement thereto, the Company shall cause its independent registered public accounting firm promptly to furnish you a letter, dated no later than five business days after the date of filing of such additional information concerning the business and financial condition report or material amendment or supplement thereto, in form reasonably satisfactory to you, of the Bank same tenor as the Dealer Manager letter referred to in Section 5(e) with such changes as may be necessary to reflect the amended and supplemental financial information included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented to the date of such letter; provided, however, that, if the Registration Statement or the Prospectus is amended or supplemented solely to include or incorporate by reference financial information as of and for a fiscal quarter, the Company’s independent registered public accounting firm may limit the scope of such letter, which shall be satisfactory in form to you, to the unaudited financial statements, the related “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and any other information of an accounting, financial or statistical nature included in such amendment or supplement, unless, in your reasonable judgment, such letter should cover other information or changes in specified financial statement line items.
(l) During the period, if any, specified in any Terms Agreement, the Company shall not, without the prior consent of the Purchaser thereunder, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any first mortgage bonds issued by the Company (other than the Notes being sold pursuant to such Terms Agreement).
(m) Notwithstanding the foregoing, it is agreed that if, at any time and from time to time reasonably request during the term of this Agreement, the Company should deliver to the Agents notification of its decision to suspend solicitation of offers to purchase Notes pursuant to Section 2(a), then during the period of any such suspension or suspensions the Company shall be relieved of its obligation to provide to the Agents the certificate, opinions and letter required pursuant to Sections 4(i), 4(j) and 4(k) hereof. However, whenever such a suspension is lifted, the Company shall be required to deliver to the Agents, prior to the resumption of any solicitation of offers to purchase Notes pursuant to Section 2(a), the most recent certificate, opinions and letter which would have been required except for the suspension. In the case of the letter required by Section 4(k) hereof, and not in limitation of Section 5(e), when the suspension is lifted the letter or letters provided by the Company’s independent registered public accounting firm shall be provided for information included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented to the date of such letter, for which a letter or letters had not been previously provided pursuant to Section 4(k).
(such statements n) During the term of this Agreement, the Company shall furnish to be on a consolidated basis each Agent (i) to the extent such documents are not available pursuant to the accounts XXXXX filing system, copies of all annual, quarterly and current reports (without exhibits) of the Bank Company filed with the Commission under the Exchange Act, (ii) to the extent such documents are not available pursuant to the XXXXX filing system or disseminated through a national news distribution source and its subsidiaries are consolidated publicly available at no charge to the recipient, copies of all announcements made to the general financial community and (iii) notice of (x) any decrease in reports furnished to stockholdersthe rating or (y) credit watch with negative implications, in either case of the Notes or any other debt securities of the Company, by any nationally recognized statistical rating organization (as defined in Section 3(a)(62) of the Exchange Act).
(o) The Company agrees that any person who has agreed to purchase and pay for any Note pursuant to a solicitation by any of the Agents shall have the right to refuse to purchase such Note if, subsequent to the agreement to purchase such Note and prior to the delivery of any payment for such Note, any change, condition or development specified in any of Sections 8(b)(iii), (iv) or (v) shall have occurred (with the judgment of the Agent that presented the offer to purchase such Note being substituted for any judgment of a Purchaser required therein) the effect of which is, in the judgment of the Agent that presented the offer to purchase such Note, so material and adverse as to make it impractical or inadvisable to proceed with the sale and delivery of such Note (it being understood that under no circumstance shall any such Agent have any duty or obligation to the Company or to any such person to exercise the judgment permitted to be exercised under this Section 4(o)).
(p) The Company shall pay any required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
Appears in 2 contracts
Samples: Selling Agency Agreement (Idaho Power Co), Selling Agency Agreement (Idaho Power Co)
Agreements. The Bank agrees Company and the Guarantor agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement The Company and the ADR Guarantor will use every reasonable effort to cause the Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereto, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to Securities, neither the Exchange Offer, Company nor the Bank Guarantor will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantor will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for of any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company or the Guarantor of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company and the Guarantor will use its commercially every reasonable efforts effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company and the Guarantor promptly will (i) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and (ii) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company and the Guarantor will make generally available to security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries the Guarantor and their subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out distribution of the offering Securities, will arrange for the determination of the Registered ADSslegality of the Securities for purchase by institutional investors and will pay any fee of the National Association of Securities Dealers, Inc., in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager connection with its review of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeoffering.
(f) The Bank will notUntil the date set forth on Schedule I hereto, and will not permit neither the Company nor the Guarantor will, without the consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or could be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelled.
(gcash settlement or otherwise) The Bank will cooperate by the Company, the Guarantor or any affiliate of the Company or the Guarantor or any person in privity with the Dealer Manager and use its commercially reasonably best efforts to permit Company or the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Guarantor or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses any affiliate of the Bank’s counsel and accountants in connection with Company or the registration of Guarantor) directly or indirectly, or announce the Registered ADSs under offering of, any debt securities issued or guaranteed by the Act and all Company or the Guarantor (other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for than the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 2 contracts
Samples: Underwriting Agreement (H&r Block Inc), Underwriting Agreement (H&r Block Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
: (a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for of any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Home Properties of New York Inc)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereto, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission Commission, or transmitted by a means reasonably calculated to result in filing with the Commission, pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative (i1) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, ; (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), ) or when any Rule 462(b) Registration Statement shall have been filed with the Commission; (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, ; (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, ; (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such that purpose, ; and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act in connection with the offering of the Securities, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representative of any such event or non-compliance at which time event; (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiii)(a) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any supplemented Prospectus to you in such amendment or supplement quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Dealer Manager Representative an earnings statement or statements of the Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto and documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representative may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative reasonably may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do -------- business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Deutsche Banc Alex. Xxxxx Inc., for a period of 90 days following the Execution Time, offer, sell or contract to sell or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, or file a Registration Statement with the Commission in respect of, any other shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock; provided, however, that the Company may file one or more -------- ------- registration statements on Form S-8 and may issue and sell Common Stock or make any awards pursuant to any employee stock option plan, stock ownership or purchase plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and the Company may issue shares of Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Common Stock in connection with an acquisition of or merger with another corporation or the acquisition of assets or properties thereof, provided, -------- that the holders of any such securities shall be cancelledsubject to the transfer restrictions set forth in Section 5(ii)(a) hereof.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(hii) The Bank Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of Deutsche Banc Alex. Xxxxx Inc., offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file (or participate 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 with respect to, any shares of Common Stock of the Company or any securities convertible into or exercisable or exchangeable for such Common Stock, or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of this Underwriting Agreement, other than sales, transfers or other distributions in transactions that are not required to be registered under the Act, including charitable contributions, gifts and sales to third parties, provided that the transferee agrees to be bound by a restriction on further -------- transfers substantially similar to the restriction set forth in this Section 5(ii)(a).
(b) Such Selling Stockholder will not take any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement or the Prospectus relating to the Selling Stockholder.
(d) Such Seller Stockholder will pay or cause to be paid the costs and expenses relating to the following matters: matters in the same proportion as the number of Securities sold by such Selling Stockholder bears to the total number of Securities sold by all of the Selling Stockholders:
(i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, postage and air freight charges and charges for counting and packagingcharges) of such copies thereof of the Registration Statement, Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and of the Exercise Shares or the sale of the SecuritiesSecurities by the Selling Stockholders; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum Underwriting Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the blue sky securities laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (viiix) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholders of its their obligations hereunder and in connection with the Exchange Offerunder this Underwriting Agreement.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Corporate Executive Board Co)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Salomon Smith Barney Inc., (i) offer, sell, contract to sell, xxxxxx, xx xtxxxxxxe dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; (ii) publicly announce an intention to be cancelledeffect any such transaction; or (iii) amend, waive or fail to enforce the Inform DX Transfer Restrictions in respect of the Inform DX Shares, in the case of clause (i), (ii) or (iii) for a period of 90 days after the date of the Underwriting Agreement, provided, however, that (1) the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (2) the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time or the satisfaction of contingencies under contingent obligations to issue shares of Common Stock in effect at the Execution Time, and (3) the Company may issue shares of Common Stock in connection with acquisitions provided that the recipients of shares of Common Stock issued in connection with acquisitions are bound by transfer restrictions no less restrictive than those set forth in this Section 5(i)(f).
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries the LLC which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the reasonable expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if to the extent necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee required to be paid to the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that (i) the Company may issue and sell Common Stock pursuant to any employee stock option plan, employee stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time; (ii) the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time; and (iii) the Company may issue or sell securities, or enter into options, warrants or other agreements providing for the issuance or sale of securities, to a strategic partner or in connection with a strategic collaboration, joint venture, licensing arrangement or other similar corporate transaction, provided that such strategic partner, collaborator, joint venture partner, licensee or licensor agrees to be cancelledbound to the same extent as the Company by the terms of this paragraph 5(f) (excluding the exceptions set forth in (i), (ii) and (iii) hereof).
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Progenics Pharmaceuticals Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:: -----------
(a) Following The Company will use its reasonable best efforts to cause the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives (which approval shall not be unreasonably withheld) with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period therein prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its reasonable best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise subject or take any action which would subject the Dealer Manager of the receipt by the Bank of any notification with respect Company to the suspension of the qualification of the Registered ADSs for sale taxation in any jurisdiction or the initiation or threatening of any proceeding for such purposewhere it is not already subject to taxation.
(f) The Bank Company will not, without the prior written consent of Citigroup Global Markets Inc. and will not permit Morgan Stanley & Co. Incorporated, offer, sell, contract to sexx, xxexxx, xx otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Carolina Group Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Carolina Group Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, ------- however, that the Company may issue options and sell Carolina Group ------- Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time or as described in the Final Prospectus.
(g) The Bank Except as disclosed in the Final Prospectus, the Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), the ADR Registration Statement Basic Prospectus, each Preliminary Final Prospectus, the Final Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus, the Final Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or (including filing fees and the reasonable fees and expenses of counsel, up to $5,000, for the Underwriters relating to such registration and qualification); (vii) any non-U.S. jurisdiction filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for to the Dealer Manager relating Underwriters related to such registration and qualification)filings; (viviii) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Loews Corp)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank and its Subsidiaries Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, the Company may issue Common Stock pursuant to the terms in effect at the Execution Time of such partner contracts as described in the Prospectus and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc. will notify the Company as to which Participants will need to be so restricted. The Bank Company will direct the transfer restrictions upon such period of time.
(j) The Company will pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(k) Furthermore, the Company covenants with each of the Underwriters that the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program.
Appears in 1 contract
Agreements. (a) The Bank Company agrees with the Dealer Manager Underwriter that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Underwriter of such timely filing. The Bank Company will promptly advise you the Underwriter (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(dii) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Securities Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Securities Act or the Exchange Act or the respective rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Underwriter of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia)(i) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(eiii) As soon as practicable, the Company will make generally available to its security holders and to the Underwriter an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(iv) The Bank Company will use its best efforts in cooperation with furnish to the Dealer Manager Underwriter and counsel for the Underwriter, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or any dealer may be required by the Securities Act, as many copies of each Preliminary Prospectus, if any, and the Prospectus and any supplement thereto as the Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(v) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Underwriter may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business or subject itself to taxation in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fvi) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelled.
(gcash settlement or otherwise) The Bank will cooperate by the Company or any affiliate of the Company or any person in privity with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Company or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses any affiliate of the Bank’s counsel and accountants Company), directly or indirectly, including the filing (or participation in connection with the filing) of a registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing 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 the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation Section 16 of the Exchange Offer; Act with respect to, any shares of Common Stock (ii) other than the preparation of this Agreement and Securities sold to the Registered Deposit Agreement, the deposit of the Registered ADSs Underwriters under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses securities convertible into, or exercisable or exchangeable for, shares of counsel for the Dealer Manager relating Common Stock, or publicly announce an intention to effect any such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 30 days after the Commencement Datedate of this Agreement; provided, furnish however, that (A) the Company may (I) issue Common Stock pursuant to the Dealer Manager all reports any employee stock option plan, stock ownership plan, dividend reinvestment plan or other communications employee benefit plan of the Company in effect at the Execution Time, (financial II) issue Common Stock issuable upon the conversion of convertible securities or otherthe exercise of warrants outstanding at the Execution Time, (III) generally made available issue Common Stock in satisfaction of a redemption right of any holder of preferred or common units of the Operating Partnership (or in satisfaction of a conversion or exchange right of any holder of any equity interest in any entity in which the Company or an affiliate of the Company also holds an equity interest), (IV) issue Common Stock, or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock, in transactions exempt from registration under the Securities Act (or publicly announce an intention to stockholderseffect any such transaction), (V) issue Common Stock, or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock, in connection with mergers, asset acquisitions or other business combination transactions (or publicly announce an intention to effect any such transaction), or (VI) issue up to $50 million of the Company's cumulative redeemable preferred stock, (B) the Operating Partnership may issue preferred or common units of the Operating Partnership, and deliver (C) any officer or director of the Company, or any of their respective affiliates (other than the Company and its subsidiaries), may offer, sell, contract to sell, pledge or otherwise dispose of Common Stock, or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock.
(vii) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Dealer Manager Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(b) Each Selling Stockholder agrees with the Underwriter and, with respect only to (ii) and (iii) below, the Company that:
(i) as soon as they are availableSuch Selling Stockholder will not, copies without the prior written consent of Xxxxxxx Xxxxx Barney Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any reports and financial statements furnished 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 filed otherwise) by the Selling Stockholder or submitted any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder), directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities exchange on which convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any class such transaction, for a period of securities 30 days after the date of this Agreement, provided that nothing contained herein shall prohibit the Selling Stockholders and their direct and indirect partners from distributing Units of the Bank is listed Operating Partnership redeemable for Common Stock to their direct and indirect partners who agree to be bound by the terms of this Section 5(b)(i).
(ii) such additional information concerning Such Selling Stockholder 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 business and financial condition Exchange Act or otherwise, stabilization or manipulation of the Bank price of any security of the Company to facilitate the sale or resale of the Securities.
(iii) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as the Dealer Manager may from time to time reasonably request (such statements to be on delivery of a consolidated basis prospectus relating to the extent Securities by the accounts Underwriter or any dealer may be required under the Securities Act, of any change in information in the Bank and its subsidiaries are consolidated in reports furnished Registration Statement or the Prospectus relating to stockholders)such Selling Stockholder.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager that:
(a) Following During any period when the declaration delivery of effectiveness of each a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the Act, the Company will not file any amendment of the Registration Statement or supplement (including any Interim Prospectus Supplement) to the Base Prospectus unless the Company has furnished to the Manager a copy for its review prior to filing and will not file any such proposed amendment or supplement to which the ADR Registration StatementManager reasonably objects. The Company has properly completed the Prospectus, the Bank will use its best efforts to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective in a form approved by the CommissionManager, and to cause filed such Prospectus, as amended at the Registered ADSs to be approved for listing on Execution Time, with the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs Commission pursuant to the Exchange Offer, applicable paragraph of Rule 424(b) by the Bank Execution Time and will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) cause any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, be properly completed, in a form approved by the Manager, and any will file such supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to you the Manager of such timely filing. The Bank Company will promptly advise you the Manager (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172, 173 or any similar rule) is required under the Act in connection with the offering or sale of the offering of the Registered ADSs pursuant to the Exchange OfferShares, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, and (vi) of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank will use its commercially reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).the
Appears in 1 contract
Samples: At the Market Program Agreement (China Direct Industries, Inc.)
Agreements. (i) The Bank Company agrees with the Dealer Manager several U.S. Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferU.S. Securities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank The Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the U.S. Representatives of such timely filing. The Bank Company will promptly advise you the U.S. Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or the ADR Registration Statement shall have been filed with the Commission, (iiiii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferU.S. Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of the Registration Statement or Statement, the ADR Registration Statement or any Rule 462(b) Registration Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of any notice objecting to their use or the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs U.S. Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal thereofof such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or the ADR Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Datefiling of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were mademade or the circumstances then prevailing not misleading, the Company will (i) promptly notify the U.S. Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it should be is necessary in the reasonable opinion of counsel for the U.S. Underwriters or for the Company to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i) notify the Dealer Manager U.S. Representatives of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentenceevent; (ii) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the U.S. Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Bank will use its best efforts in cooperation Company agrees that, and each U.S. Underwriter, severally and not jointly, agrees with the Dealer Manager Company that, it has not made and will not make any offer relating to the Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433.
(f) The Company will furnish to the U.S. Representatives and counsel for the U.S. Underwriters, without charge, signed copies of the Registration Statement and the ADR Registration Statement (including exhibits thereto) and to each other U.S. Underwriter a copy of the Registration Statement and the ADR Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an U.S. Underwriter or dealer may be required (including in circumstances where such requirement may be satisfied pursuant to Rule 172) by the Act, as many copies of each U.S. Preliminary Prospectus, the U.S. Prospectus and any supplement thereto as the U.S. Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager U.S. Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) Other than in connection with the offerings contemplated by the U.S. Underwriting Agreement and the Mexican Underwriting Agreement, the Company will not, without the prior written consent of Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, as lock-up release agents, (i) offer, sell, contract to sell, pledge, or otherwise dispose of, (ii) enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, (iii) file (or participate in the filing) of a registration statement with the Commission in respect of, or (iv) 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, as amended, and the rules and regulations promulgated thereunder (each of (i)-(iv), a “Transfer”) in respect of any Series A Shares, Series C Shares or ADSs or any securities convertible into, or exercisable, or exchangeable for, Series A Shares or ADSs (collectively the “Lock-Up Securities”); or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of the Underwriting Agreements, provided, however, that Transfers of the Lock-Up Securities are permitted (i) pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan, or long term incentive plan of the Company in effect at the Execution Time and the Company may issue Lock-Up Securities issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (ii) to an affiliate (as such term is defined in Rule 405 of the Act) of the Company or as a distribution to any member, general partner, limited partner or stockholder of the Company, (iii) to a trust the beneficiary of which is the Company or is an affiliate of the Company, (iv) to a charitable organization; (v) to any corporation, partnership, limited liability company or other entity that is wholly-owned by the Company, (vi) pursuant to the enforcement of pledges or liens upon the Lock-Up Securities existing as of the date of this U.S. Underwriting Agreement, and (vii) to any transferee in respect of Lock-Up Securities acquired by the Company in the open market; provided, however, that in the case of clauses (ii) through (vi), unless otherwise agreed to in writing by the release agents, these permitted transferees shall sign and deliver a lock-up letter substantially in the form of this letter agreement, until the expiration of the Lock-Up Period. Notwithstanding the foregoing, if (x) during the last 17 days of the 180-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The Bank Company will provide the Representatives and any co-managers and each individual subject to the restricted period pursuant to the lock-up letters described in Section 6(u) hereof with prior notice of any such announcement that gives rise to an extension of the restricted period.
(i) If Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, in their sole discretion and as lock-up release agents, agrees to release or waive the restrictions set forth in a lock-up letter described in Section 6(u) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three Business Days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two Business Days before the effective date of the release or waiver.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Series A Shares or the ADSs.
(k) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters, subject to such limitations on number of counsel and limits on expenses as may have been agreed in writing between the Company and the U.S. Representatives: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), the Preliminary Prospectus, the Prospectus, the ADR Registration Statement Statement, and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) each amendment or supplement to any of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offerthem; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs Underlying Securities under the Registered Deposit Agreement, the issuance thereunder of the ADSs representing such deposited sharesUnderlying Securities, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreementthe Registration Statement, the Preliminary Prospectus, the Prospectus, the ADR Registration Statement, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the U.S. Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the U.S. Securities, including any stamp, transfer taxes or other similar taxes in connection with the original issuance and sale of the U.S. Securities; (v) the printing (or reproduction) and delivery of the Underwriting Agreements, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the U.S. Securities; (vvi) the registration of the U.S. Securities under the Exchange Act and the listing of the ADSs on the New York Stock Exchange; (vii) any registration or qualification of the Registered ADSs U.S. Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager U.S. Underwriters relating to such registration and qualification); (viviii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (FINRA) (including filing fees and the fees and expenses of counsel for the U.S. Underwriters relating to such filings, such fees of counsel up to an aggregate amount not to exceed $50,000); (ix) the reasonable and documented transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferU.S. Securities; (viix) the fees and expenses incurred of the Company’s accountants and the fees and expenses of counsel (limited to one counsel in connection with listing the Registered ADSs on United States, one counsel in Argentina and one counsel in Mexico for the New York Stock ExchangeU.S. Underwriters and Mexican Underwriters; and (viiixi) all other reasonable and documented costs and expenses incident to the performance incurred by the Bank of its obligations hereunder and U.S. Underwriters in connection with the Exchange Offeroffering of the U.S. Securities contemplated by this U.S. Underwriting Agreement.
(l) The Company will promptly notify the U.S. Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the U.S. Securities within the meaning of the Act and (b) completion of the 180-day restricted period referred to in Section 5(h) hereof.
(m) If at any time following the distribution of any Written Testing-the-Waters Communication, any event occurs as a result of which such Written Testing-the-Waters Communication would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) promptly notify the U.S. Representatives so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the U.S. Representatives in such quantities as may be reasonably requested.
(n) The Bank Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the BankCompany’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Vista Oil & Gas, S.A.B. De C.V.)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a1) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d2) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx, for a period of 180 days following the Execution Time, offer, sell or contract to sell, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Registered ADSs affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any other shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock, other than pursuant to the Travel Distribution (as defined in the Prospectus); provided, however, that have been the Company may issue Common Stock (i) in consideration or partial consideration for assets (including stock) acquired by them. The Bank will cause all Rule 144A ADSs accepted the Company, (ii) pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company described in the Exchange Offer to be cancelledProspectus or (iii) issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank representatives the Company's executive officers in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident incidental to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Navigant International Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager without charge in such quantities Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank During the period from the date of this agreement through the five year anniversary hereof, the Company will use furnish upon request to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its best efforts in cooperation annual report to stockholders for such year; and the Company will furnish upon request to the Representatives as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Dealer Manager Commission under the Exchange Act or mailed to stockholders.
(f) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided provided, however, that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fg) The Bank For a period from the date of the Prospectus through and including October 11, 2005 (the “Lock-up Period”), the Company will not, and will not permit any the Operating Partnership to offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement (except a registration statement on Form S-4 relating to the Company’s acquisition of its Affiliates another entity) under the Act relating to, resell any Registered ADSs additional shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, including, without limitation, OP Units, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives, other than grants of stock options, PIUs, RSUs or restricted stock to employees, consultants or directors pursuant to the terms of a plan in effect as of the date of the Prospectus, issuances of Common Stock in connection with redemptions of any OP Units and pursuant to a dividend reinvestment plan (if any), issuances of Common Stock, OP Units or other securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of interests in real property, real property companies or entities owning interests in real property. In the event that have been acquired by them. The Bank either (x) during the last 17 days of the Lock-up Period referred to above, the Company issues an earnings release or (y) prior to the expiration of such Lock-up Period, the Company announces that it will cause all Rule 144A ADSs accepted in release earnings results or issues a press release announcing a significant event during the Exchange Offer 17-day period beginning on the last day of such Lock-up Period, the restrictions described above shall continue to be cancelled.
(g) The Bank will cooperate with apply until the Dealer Manager and use its commercially reasonably best efforts to permit expiration of the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company17-day period beginning on the first day following the date of the earnings release or press release.
(h) The Bank Company will use its reasonable best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2004 and for each of its succeeding taxable years for so long as the Board of Directors of the Company deems it in the best interests of the Company’s stockholders to remain so qualified, for taxation as a REIT under the Code.
(i) The Company will use its best efforts to cause the Securities to be approved for listing, subject to official notice of issuance, on the NYSE prior to the Closing Date.
(j) The Company will use its commercially reasonable efforts to complete the construction of its properties in accordance with the description set forth in the Prospectus.
(k) For so long as the delivery of a prospectus is required by Federal or state law in connection with the offering or sale of the Securities, the Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply in all material respects with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act.
(l) The Company will file with the Commission such reports as may be required pursuant to Rule 463 under the Act.
(m) None of the Company or the Subsidiaries will 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 of their securities to facilitate the sale or resale of the Securities.
(n) For so long as the delivery of a prospectus is required by Federal or state law in connection with the offering or sale of the Securities, the Company will take such steps as shall be necessary to ensure that none of the Transaction Entities shall become an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(o) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on NYSE; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred of the Company’s accountants, counsel (including local and special counsel) and transfer agent and registrar; (x) any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with listing attending or hosting meetings with prospective purchasers of the Registered ADSs on the New York Stock ExchangeSecurities; and (viiixi) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(ip) The Bank During the period when the Prospectus is required to be delivered by the Underwriters under the Act or the Exchange Act, the Company will (1) comply with all applicable securities provisions of the Act and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts (2) file all documents required to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or be filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis pursuant to the extent Exchange Act within the accounts of time periods required by the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Exchange Act.
Appears in 1 contract
Samples: Underwriting Agreement (American Campus Communities Inc)
Agreements. (a) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a1) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferShares, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or _______________, 2002 Page 11 any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object, and will use its reasonable best efforts to cause any such amendment or supplementto become effective. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer ProspectusProspectus Supplement, properly completed, and any further supplement thereto to the Prospectus to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative (i1) when the Registration Statement and the ADR Registration StatementProspectus Supplement, and any amendment thereto, shall have become effective, (ii) when further supplement to the Exchange Offer Prospectus, and any supplement thereto or any document incorporated therein, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed (if required) with the Commission, (iii2) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferShares, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv3) of any request by the Commission or its orits staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v4) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi5) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Shares for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal or lifting thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d2) If, at any time prior when a prospectus relating to the Settlement DateShares is required to be delivered under the Act, any event occurs as a result of which which, in the Exchange Offer Prospectusopinion of counsel for the Company or of counsel for the Underwriters, the Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representative of any such event or non-compliance at which time event; (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(e3) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. _______________, 2002 Page 12
(4) The Bank Company will use its best efforts in cooperation with furnish to the Dealer Manager Representative and counsel for the Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Prospectus and any supplement thereto as the Representative may reasonably request.
(5) The Company will arrange, if necessary, for the qualification of the Registered ADSs Shares for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Shares; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsShares, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f6) The Bank Company will not, and will not permit without the prior written consent of ______________, for a period of ________ following the Execution Time, offer, sell or contract to sell, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any other shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock; PROVIDED, HOWEVER, that the Company may (i) issue and sell Common Stock pursuant to any employee stock option plan, stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and (iii) grant options to purchase shares of Common Stock under the Company's employee stock option plan and stock purchase plans.
(g7) The Bank Except as stated in this Agreement or the Prospectus, the Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Shares.
(h) 8) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), the ADR Registration Statement Prospectus, and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offeramendment or supplement thereto; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus, _______________, 2002 Page 13 and all amendments or supplements thereto, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (iv) the registration of the Shares under the Exchange OfferAct and the listing of the Shares on the Nasdaq National Market; (v) any registration or qualification of the Registered ADSs Shares for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi) transportation any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and other the reasonable fees and expenses incurred by or on behalf of Bank representatives in connection with presentations counsel for the Underwriters relating to prospective participants in the Exchange Offersuch filings); (vii) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viii) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder.
(9) The Company, during the period when the prospectus is required to be delivered under the Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the regulations thereunder.
(10) The Company will comply with all provisions of any undertakings contained in the Registration Statement.
(b) Each Selling Stockholder covenants and agrees with the several Underwriters as follows:
(1) Such Selling Stockholder will review the Prospectus and will comply with all agreements and satisfy all conditions on its part to be complied with or satisfied pursuant to this Agreement on or prior to the Closing Date and will advise the Underwriters prior to the Closing Date if any statements to be made on behalf of such Selling Stockholder in the certificate contemplated by Section 6(j) hereof would be inaccurate if made as of the Closing Date.
(2) On the Closing Date, all stock transfer and other taxes (other than income taxes) that are required to be paid in connection with the Exchange Offersale and transfer of the Shares to be sold by such Selling Stockholder to the Underwriters hereunder will have been fully paid for by such Selling Stockholder and all laws imposing such taxes will have been fully complied with.
(i3) The Bank will comply In order to document the Underwriter's compliance with all applicable securities the reporting and other lawswithholding provisions of the Internal Revenue Code of 1986, rules and regulations, including, without limitation, as amended (the Sarbanes Oxley Act"Code"), and use its best efforts to cause the Bank’s directors and officersregulations promulgated thereunder, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish respect to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholderstransactions _______________, and 2002 Page 14 herein contemplated, such Selling Stockholder shall deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis you at least two days prior to the extent the accounts of the Bank Closing Date a properly completed and its subsidiaries are consolidated in reports furnished to stockholders)executed United States Treasury Department Substitute Form W-9.
Appears in 1 contract
Samples: Underwriting Agreement (Hibbett Sporting Goods Inc)
Agreements. (a) The Bank Company agrees with the Dealer Manager several Underwriters that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives a copy of for review prior to filing and will not file any such proposed amendment or supplementsupplement to which the Representatives reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of Section 5(a)(i), an amendment or supplement that will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(ciii) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(div) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(ev) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided provided, that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it execute or file a general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager subject to service of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeprocess.
(fvi) The Bank Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period (the “Lock-Up Period”) of 180 days after the date of the Underwriting Agreement; provided, however, that this Section 5(a)(vi) shall not prohibit the Company from, and no consent of Citigroup Global Markets Inc. shall be required prior to the Company, (1) issuing, after the Closing Date, shares of Common Stock and securities convertible into or exchangeable for shares of Common Stock (collectively, “Strategic Transaction Securities”) in connection with any strategic partnership, joint venture or collaboration to which the Company is a party, or the acquisition or license of any products or technology by the Company, provided, that (a) the total number of shares of Common Stock, including shares underlying convertible or exercisable securities, which may be issued pursuant to this clause (1) cannot exceed one million five hundred thousand (1,500,000) shares of Common Stock, (b) each recipient of Strategic Transaction Securities shall, prior to the receipt of any Strategic Transaction Securities, agree in writing, for the benefit of the Underwriters, that, during the Lock-Up Period, such recipient shall not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by such recipient or any affiliate of such recipient or any person in privity with such recipient or any affiliate of such recipient), 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 and the rules and regulations of the Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for, such capital stock, or publicly announce an intention to effect any such transaction, (c) the Company shall not, without the prior written consent of Citigroup Global Markets Inc., grant, purport to grant, or permit, or purport to permit, the granting, directly or indirectly, of, any waiver from such written agreement before expiration of the Lock-Up Period, and (d) all such Strategic Transaction Securities, and all securities underlying such Strategic Transaction Securities, are, when issued, “restricted securities” (as defined in Rule 144(a)(3) under the Act) and will not permit be, at any time during the Lock-Up Period, registered under the Act; (2) issuing shares of its Affiliates toCommon Stock, resell or securities convertible into or exercisable for shares of Common Stock, pursuant to any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted stock option plan, stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company which is described in the Exchange Offer to be cancelledProspectus and the Registration Statement and is in effect at the Execution Time; (3) issuing shares of Common Stock issuable upon the conversion or exchange of convertible or exchangeable securities, or upon the exercise of warrants or options, outstanding at the Execution Time and described in the Prospectus and the Registration Statement; or (4) filing with the Commission of any registration statements on Form S-8 under the Act, as contemplated by the Prospectus and the Registration Statement.
(gvii) The Bank Company will cooperate comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Dealer Manager Sarbanes Oxley Act, and will use its commercially reasonably best reasonable efforts to permit cause the Registered ADSs Company’s directors and officers, in their capacities as such, to be eligible for clearance comply in all material respects with such laws, rules and settlement through The Depository Trust Companyregulations, including, without limitation, the provisions of the Sarbanes Oxley Act.
(hviii) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities. Furthermore, the Company covenants with Citigroup Global Markets Inc. that the Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(b) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification, provided, that, if requested by the Company, the Representatives shall deliver to the Company a reasonably detailed invoice reasonably satisfactory to the Company itemizing such reasonable fees and expenses of counsel for the Underwriters); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings, provided, that, if requested by the Company, the Representatives shall deliver to the Company a reasonably detailed invoice reasonably satisfactory to the Company itemizing such reasonable fees and expenses of counsel for the Underwriters); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and counsel for the Selling Stockholder; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder. The Company agrees to pay (1) all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Exchange OfferDirected Share Program, provided, that, if requested by the Company, the Representatives shall deliver to the Company a reasonably detailed invoice reasonably satisfactory to the Company itemizing such reasonable fees and disbursements of counsel incurred by the Underwriters, (2) all reasonable costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Share Program material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(c) The Selling Stockholder agrees with the several Underwriters that:
(i) The Bank Selling Stockholder will comply with all applicable securities and other lawsnot take, rules and regulationsdirectly or indirectly, including, without limitation, the Sarbanes Oxley Act, and use its best efforts any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Bank’s directors and officersExchange Act or otherwise, in their capacities as such, stabilization or manipulation of the price of any security of the Company to comply with such laws, rules and regulationsfacilitate the sale or resale of the Securities.
(jii) The Bank willSelling Stockholder will advise you promptly, for and if requested by you, will confirm such advice in writing, so long as delivery of a period of twelve months following the Commencement Date, furnish prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change in the Company’s condition (financial or other) generally made available to stockholdersotherwise), and deliver to the Dealer Manager (i) as soon as they are availableprospects, copies of any reports and financial statements furnished to earnings, business or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and properties, (ii) such additional any change in information concerning in the business and financial condition Registration Statement or the Prospectus relating to the Selling Stockholder or (iii) any new material information relating to the Company or relating to any matter stated in the Prospectus which comes to the attention of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Selling Stockholder.
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain the effectiveness cause any amendment of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof become effective as promptly as practicable. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii2) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv3) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v4) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement of any notice that would prevent its use or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi5) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or notice or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time, including any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which either the Exchange Offer Prospectus, Disclosure Package or the Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances then prevailing or under which they were made, as the case may be, not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentencedevelopment; (ii2) prepare and, if required, file with the Commission, subject to the second sentence of Section 5(i)(a) or Section 5(iii), as applicable, an amendment or supplement that or Issuer Free Writing Prospectus which will correct such statement or omission or effect such compliance; and (iii3) supply any amended or supplemented Prospectus or any such amendment or supplement Issuer Free Writing Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Dealer Manager Representatives an earnings statement or statements of the Company and the Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(d) The Company will furnish to the Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required (including in circumstances where such quantities requirement may be satisfied pursuant to Rule 172) by the Act, as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided PROVIDED that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, make any short sale or otherwise dispose of its Affiliates (or enter into any swap, hedging or other transaction which is designed to, resell or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Registered ADSs that have been acquired by themaffiliate of the Company or any person in privity with the Company or any affiliate of the Company) or make any demand for, require any notice of or exercise any right with respect to the registration of, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement. The Bank will cause all Rule 144A ADSs accepted foregoing sentence shall not apply to (i) the Securities to be sold hereunder, (ii) any shares of Common Stock issued pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time or to be in effect on the Closing Date as described in the Exchange Offer Disclosure Package and the Prospectus and (iii) any shares of Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time. Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day lock-up period, the Company issues an earning release or material news or a material event relating to be cancelledthe Company occurs or (2) prior to the expiration of the 180-day period, the Company announces an intention to release earnings information or becomes aware that material news or a material event will occur during the 16-day period beginning on the last day of the 180-day lock-up period, then in each case the initial 180-day lock-up period shall end on and include the 18th day following the date of such release or the occurrence of the material news or material event, as applicable. The Company will promptly notify the Representatives of any such earnings information, news or event that may give rise to an extension of the 180-day lock-up period.
(g) The Bank Company will cooperate comply in all material respects with all applicable securities and other laws, rules and regulations, including, without limitation, the Dealer Manager Xxxxxxxx-Xxxxx Act, and use its commercially reasonably best efforts to permit cause the Registered ADSs Company's directors and officers, in their capacities as such, to be eligible for clearance comply in all material respects with such laws, rules and settlement through The Depository Trust Companyregulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company will use its best efforts to effect and maintain the quotation of the Securities on the Nasdaq Global Market.
(j) The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under "Use of Proceeds."
(ii) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Issuer Free Writing Prospectus, each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Issuer Free Writing Prospectus, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the inclusion of the Securities on the Nasdaq Global Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(iiii) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley ActCompany represents that it has not made, and use its best efforts to cause agrees that, unless it obtains the Bank’s directors and officersprior written consent of the Representatives, in their capacities as suchit will not make, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish any offer relating to the Dealer Manager all reports Securities that constitutes or other communications (financial would constitute an Issuer Free Writing Prospectus or other) generally made available a Free Writing Prospectus or a portion thereof required to stockholders, and deliver to be filed by the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted Company with the Commission or any securities exchange on which any class of securities retained by the Company under Rule 433 of the Bank Act; provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any Bona Fide Electronic Road Show. Any such free writing prospectus consented to by the Representatives is listed hereinafter referred to as a "Permitted Free Writing Prospectus." The Company represents and agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) such additional information concerning has complied and will comply, as the business case may be, with the requirements of Rules 164 and financial condition 433 of the Bank as Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank Commission, legending and its subsidiaries are consolidated in reports furnished to stockholders)record keeping.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:: ----------
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, -------- ------- that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on or the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc. will notify the Company as to which Participants will need to be so restricted. The Bank Company will direct the transfer restrictions upon such period of time.
(j) The Company will pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with Xxxxxxx Xxxxx Xxxxxx Inc. that the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program.
Appears in 1 contract
Agreements. (a) The Bank Company agrees with the Dealer Manager several Underwriters that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the time this Agreement is executed, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the time this Agreement is executed, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank Company will furnish (i) not make any offer relating to the Dealer Manager Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule II hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to counsel for the Dealer Managerany Issuer Free Writing Prospectus, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Daterequirements relating to timely filing with the Commission, copies legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(iii) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a)(i) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(civ) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(dv) If, at any time prior The Company will make available to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. Such copies of the Prospectus shall be furnished on or prior to the Business Day following the execution and delivery of this Agreement. All other documents shall be furnished as soon as available.
(evi) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fvii) (A) The Bank Company will not, without the prior written consent of Credit Suisse Securities (USA) LLC and will not permit X.X. Xxxxxx Securities Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelled.
(gcash settlement or otherwise) The Bank will cooperate by the Company or any affiliate of the Company or any person in privity with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Company or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses any affiliate of the Bank’s counsel and accountants Company) directly or indirectly, including the filing (or participation in connection with the filing) of a registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing 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 the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation Section 16 of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this AgreementAct, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification shares of the Registered ADSs for offer and sale under the blue sky laws of the several states Common Stock or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses securities convertible into, or exercisable, or exchangeable for, shares of counsel for the Dealer Manager relating Common Stock; or publicly announce an intention to effect any such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 90 days after the Commencement Datedate of the Underwriting Agreement (the “Restricted Period”), furnish provided, however, that the Company may issue and sell Common Stock pursuant to any employee equity incentive plan or employee stock purchase plan in effect at the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, Applicable Time and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with Company may issue Common Stock issuable upon the Commission or any securities exchange on which any class conversion of securities or the exercise of warrants or options outstanding at the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Applicable Time.
Appears in 1 contract
Samples: Underwriting Agreement (Taleo Corp)
Agreements. The Bank agrees Company and the Guarantors agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to Securities, none of the Exchange OfferCompany, the Bank TW AOL, Historic TW, TWCI and TBS will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company or a Guarantor has furnished you a copy for your review prior to filing or will file any such proposed amendment or supplement to which you reasonably object on a timely basis (other than filings of documents pursuant to Section 13(a) or 14 under the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplementAct). Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantors will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company, TW AOL, Historic TW, TWCI and TBS will promptly advise you the Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offereach series of Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of to the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional informationinformation relating to the offering of the Securities, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by the Bank Company, TW AOL, Historic TW, TWCI or TBS of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Each of the Company, TW AOL, Historic TW, TWCI and TBS will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank Company will furnish to the Dealer Manager and to counsel for the Dealer Managerprepare a final term sheet, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies containing solely a description of the Offering Documents Securities, in the form attached hereto as Schedule III and any amendments and supplements thereto in the Company will file such quantities as term sheet pursuant to Rule 433(d) within the Dealer Manager may reasonably requesttime required by such Rule.
(c) After If there occurs an event or development as a result of which the consummation Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the Exchange Offercircumstances then prevailing, not misleading, the Bank Company will make generally available an earnings statement or statements notify promptly the Representatives so that any use of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the ActDisclosure Package may cease until it is amended or supplemented.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Exchange Offer Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the ADR Registration Statement or the Exchange Offer Final Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, the Bank Company and the Guarantors promptly will promptly: prepare and file with the Commission, subject to the first sentence of paragraph (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iiia) of this sentence; (ii) prepare Section 4, an amendment amendment, supplement or supplement that new registration statement which will correct such statement or omission or effect such compliance; .
(e) As soon as practicable, the Company and (iii) supply any such amendment or supplement the Guarantors will make generally available to their respective security holders and to the Dealer Manager Representatives an earnings statement or statements of each of the Company, TW AOL, Historic TW, Time Warner, TWCI and TBS and their respective subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) If and to the extent specified in Schedule I, each of the Company, TW AOL, Historic TW, TWCI and TBS will use its reasonable best efforts to cause the Securities to be duly authorized for listing or trading on a securities exchange or inter-dealer quotation system and to be registered under the Exchange Act.
(g) The proceeds of the offering of the Securities will be applied as set forth in the Final Prospectus.
(h) The Company, TW AOL, Historic TW, TWCI and TBS will furnish to the Representatives and counsel for the Dealer Manager Underwriters, without charge charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such quantities requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Final Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(ei) The Bank Company and the Guarantors will use its best efforts pay and bear all costs and expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits), the Basic Prospectus, any Preliminary Final Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof to the Underwriters, (ii) the preparation, printing and distribution of this Agreement, the Indenture, the Securities, any Blue Sky Survey and any Legal Investment Survey, (iii) the delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s and the Guarantors’ counsel and the accountants required hereby to provide “comfort letters”, (v) the qualification of the Securities under the applicable securities laws in cooperation accordance with Section 4(j) and any filing for review of the offering with the Dealer Manager to National Association of Securities Dealers, Inc., including filing fees and fees and disbursements of counsel for the Underwriters in connection therewith and in connection with any Blue Sky Survey and any Legal Investment Survey, (vi) any fees charged by rating agencies for rating the Securities, (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Securities, (viii) any expenses and listing fees in connection with the listing of the Securities, (ix) the cost and charges of any transfer agent or registrar and (x) the costs of qualifying the Securities with The Depository Trust Company.
(j) The Company and the Guarantors will arrange, if necessary, for the qualification of the Registered ADSs each series of Securities for offer by the Dealer Manager distribution, offering and sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for the distribution of such offerseries of Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that none of the Company, TW AOL, Historic TW, TWCI or TBS shall be required to (i) qualify as a foreign corporation or as a dealer in no event shall the Bank be obligated to qualify to do business securities in any jurisdiction in which where it is would not now so qualified or otherwise be required to take qualify but for this Section 4(j), (ii) file any action that would subject it general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, or (iii) subject itself to taxation in any such jurisdiction in which if it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fk) The Bank Company agrees that, unless it obtains the prior written consent of the Representatives, which consent will notnot be unreasonably witheld or delayed, and each Underwriter, severally and not jointly, agrees with the Company that, unless it obtains the prior written consent of the Company, it has not made and will not permit make any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses offer relating to the following matters: Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (ias defined in Rule 405) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof required to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance filed by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted Company with the Commission or any securities exchange on which any class of securities retained by the Company under Rule 433, other than the final term sheet prepared and filed pursuant to Section 4(b) hereto; provided that the prior written consent of the Bank parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company, as the case may be, is listed hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (iiy) such additional information concerning the business it has complied and financial condition of the Bank will comply, as the Dealer Manager case may from time be, with the requirements of Rules 164 and 433 applicable to time reasonably request any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(such statements l) The Company shall comply with the terms of any lock-up agreement specified in Schedule I hereto with respect to be on a consolidated basis to the extent the accounts sales and dispositions of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Underwritten Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Turner Broadcasting System Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Saloxxx Xxxxx Xxxnxx Xxx., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses in stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain the effectiveness of cause the Registration Statement if not effective at the Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening institution of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the 1933 Act, any event occurs as a result of which the Exchange Offer Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Final Prospectus to comply with applicable lawthe 1933 Act or the Exchange Act or the respective rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii3) supply any supplemented Final Prospectus to you in such amendment quantities as you may reasonably request. If applicable, the Final Prospectus and any amendments or supplement supplements thereto furnished to the Dealer Manager Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(c) During the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment and any filing under Rule 462(b) of the 1933 Act), or any amendment, supplement or revision to either the prospectus included in the Registration Statement at the time it became effective or to the Final Prospectus, whether pursuant to the 1933 Act, the Exchange Act or otherwise; will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be; and will not file any such documents to which the Representatives or counsel for the Underwriters shall reasonably object.
(d) The Company will furnish to the Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Dealer Manager Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as each Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the 1933 Act.
(f) The Bank Company will use its best efforts in cooperation cooperate with the Dealer Manager to arrangeRepresentatives and counsel for the Underwriters, if necessary, in connection with for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank Company will cooperate not, without the prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, ox xxherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Dealer Manager Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of this Agreement, provided, however, that the Company may (i) issue and use its commercially reasonably best efforts sell Common Stock pursuant to permit any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Registered ADSs to be eligible for clearance Company in effect at the Execution Time, (ii) issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (iii) issue commercial paper in the ordinary course of business and settlement through The Depository Trust Company(iv) file a universal shelf registration statement with the Commission.
(h) The Bank agrees If at any time during such period the Company ceases to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing file reports with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packagingpursuant to Section 13 or 15(d) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) Act, during the preparation period of this Agreement and five years after the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies date of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproducedi) and delivered in connection with to mail as soon as reasonably practicable after the Exchange Offer; (v) any registration or qualification end of each fiscal year to the record holders of its Securities a financial report of the Registered ADSs for offer Company and sale under the blue sky laws its subsidiaries on a consolidated basis (and a similar financial report of all unconsolidated subsidiaries, if any), all such financial reports to include a consolidated balance sheet, a consolidated statement of operations, a consolidated statement of cash flows and a consolidated statement of changes in stockholders' equity as of the several states or any non-U.S. jurisdiction (including filing fees end of and for such fiscal year, together with comparable information as of the reasonable fees end of and expenses of counsel for the Dealer Manager relating preceding year, certified by independent certified public accountants, and (ii) to mail and make generally available as soon as practicable after the end of each quarterly period (except for the last quarterly period of each fiscal year) to such registration holders, a consolidated balance sheet, a consolidated statement of operations and qualification); a consolidated statement of cash flows (viand similar financial reports of all unconsolidated Subsidiaries, if any) transportation as of the end of and other expenses incurred by or on behalf for such period, and for the period from the beginning of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident such year to the performance by close of such quarterly period, together with comparable information for the Bank corresponding periods of its obligations hereunder and in connection with the Exchange Offerpreceding year.
(i) The Bank Company will comply with all applicable securities and other lawsnot take, rules and regulationsdirectly or indirectly, including, without limitation, the Sarbanes Oxley Act, and use its best efforts any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Bank’s directors and officersExchange Act or otherwise, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period stabilization or manipulation of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies price of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities security of the Bank is listed and (ii) such additional information concerning Company to facilitate the business and financial condition sale or resale of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Agreements. The Bank Company agrees with the Dealer Manager Underwriter that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferUnderwritten Securities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with or any Rule 462(b) Registration Statement unless the Company has furnished the Underwriter a copy of for its review prior to filing and will not file any such proposed amendment or supplementsupplement to which it reasonably objects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Underwriter with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Underwriter of such timely filing. The Bank Company will promptly advise you the Underwriter (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferUnderwritten Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Underwritten Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Underwritten Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act, the Company promptly will (1) notify the Underwriter of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Underwriter an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Underwriter and counsel for the Dealer Manager without charge in such quantities Underwriter signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or a dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Underwriter may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Underwritten Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Underwriter may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Underwritten Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to taxation or service of process in suits, other than those arising out of the offering or sale of the Registered ADSsUnderwritten Securities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will notcomply with all applicable securities and other applicable laws, rules and regulations, including the Sarbanes Oxley Act, and will not permit any to use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including the provisions of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelledSarbanes Oxley Act.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Underwritten Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) each amendment or supplement to any of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offerthem; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Underwritten Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Underwritten Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Underwritten Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Underwritten Securities; (v) the registration of the Underwritten Securities under the Exchange Act and the listing of the Underwritten Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Underwritten Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriter relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferUnderwritten Securities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitationIf less than 150,000,000 shares of Charter common stock are sold in the offering, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, Company will continue to comply with such lawsits obligations under the Share Loan Registration Rights Agreement dated as of November 22, rules 2004, between the Company and regulationsthe Underwriter.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications Inc /Mo/)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, PROVIDED, HOWEVER, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank OEI agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank OEI will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank OEI will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless OEI has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank OEI will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank OEI will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank OEI of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank OEI will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank OEI promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time event; (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any supplemented Prospectus to you in such amendment quantities as you may reasonably request.
(c) As soon as practicable, OEI will make generally available to its security holders and to each Representative an earnings statement or supplement statements of OEI and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) OEI will furnish to the Dealer Manager each Representative and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank OEI will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided PROVIDED that in no event shall the Bank OEI be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank OEI will not, and will cause its directors, officers and the Stockholders not permit to, without the prior written consent of Smith Barney Inc. for a period of [two years] following the Execution Xxxx (xxx "Xockup"), sell, offer to sell, solicit an offer to buy, contract to sell, grant an option to purchase, or otherwise transfer or dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by OEI or any affiliate of OEI or any person in privity with OEI or any affiliate of OEI) directly or indirectly, or announce the offering of, any other shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock; PROVIDED, HOWEVER, that OEI may issue Common Stock (i) in connection with acquisitions; (ii) pursuant to awards under OEI's 1998 Incentive Plan and Employee Stock Purchase Plan; and (iii) pursuant to the exercise of warrants outstanding as of the Closing, and its stockholders (other than directors and officers of OEI and those of its Affiliates to, resell any Registered ADSs that have been stockholders who are beneficial owners of 5% or more of the Common Stock) may sell shares of Common Stock to the extent such share were acquired by them. The Bank will cause all Rule 144A ADSs accepted in on the Exchange Offer to be cancelledexercise of employee stock options.
(g) The Bank OEI will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of OEI to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank OEI agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank OEI representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of OEI's, Petrocon's and each Company's accountants and the Registered ADSs on the New York Stock Exchange; fees and expenses of their respective counsel (viiiincluding local and special
(x) all other costs and expenses incident to the performance by the Bank OEI, Petrocon and each Company of its respective obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a Prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time event; (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates supplemented Prospectus to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents related to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or xxxxxwxxx xxspose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any shares of Common Stock (other than the Securities) or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock, or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of this Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan, dividend reinvestment plan or long-term incentive plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action that constitutes or that is designed to or might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Prospectus and amendments each amendment or supplement to any of them; (ii) the printing (or reproduction) and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) any the registration or qualification of the Registered ADSs for offer and sale Securities under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification)Exchange Act; (vi) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (vii) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viii) all other costs and expenses incident to the performance by the Bank Company of its their obligations hereunder and in connection with the Exchange Offerhereunder.
(iii) The Bank Selling Stockholder agrees with the several Underwriters that:
(a) The Selling Stockholder will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, plexxx xx xxxxxxise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Sarbanes Oxley Actdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), and use its best efforts directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company (other than the Securities) or any securities convertible into, or exercisable or exchangeable for, such capital stock, or publicly announce an intention to cause the Bank’s directors and officers, in their capacities as such, to comply with effect any such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 90 days after the Commencement Datedate of this Agreement, furnish other than any such securities disposed of as bona fide gifts approved by Salomon Smith Barney Inc.
(b) The Selling Stockholdxx xxxx xxx xaxx, xxrectly or indirectly, any action that constitutes or that is designed to or might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) The Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change known to the Selling Stockholder in the Company's condition (financial or other) generally made available to stockholdersotherwise), and deliver to the Dealer Manager (i) as soon as they are availableprospects, copies of any reports and financial statements furnished to earnings, business or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and properties, (ii) such additional any change in information concerning in the business and financial condition Registration Statement or the Prospectus relating to the Selling Stockholder or (iii) any new material information relating to the Company or relating to any matter stated in the Prospectus which comes to the attention of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Selling Stockholder.
Appears in 1 contract
Samples: Underwriting Agreement (International Speedway Corp)
Agreements. The Bank Fund agrees with the Dealer Manager several Underwriters that:: ----------
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Fund will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Fund will not file (x) any amendment to of the Registration Statement or supplement (whether pursuant to the ADR Registration Statement Act, the Investment Company Act, or (yotherwise) to the Prospectus unless the Fund has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b)497, the Bank Fund will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) 497 within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Fund will promptly advise you the Representative (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)497, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement under the Act or the ADR Registration Statement issuance of any notice or order under Section 8(e) of the Bank becoming aware of Investment Company Act or the institution or threatening of any proceeding for any either such purpose, purpose and (vi) of the receipt by the Bank Fund of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Fund will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act, the Bank Investment Company Act or the Rules and Regulations, the Fund promptly will promptly: prepare and file with the Commission, subject to the second sentence of para graph (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; .
(c) As soon as practicable, the Fund will make generally available to its security holders and (iii) supply any such amendment or supplement to the Dealer Manager Representative an earnings statement or statements of the Fund and its subsidiaries which will satisfy the provisions of Section ll(a) of the Act and Rule 158 under the Act.
(d) The Fund will furnish to the Representative and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representative may reasonably request.
(e) The Bank Fund will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate and designate, will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out distribution of the offering Securities and will pay the fee of the Registered ADSsNational Association of Securities Dealers, Inc., in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager connection with its review of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeoffering.
(f) The Bank Fund will not, for a period of 180 days following the date of the Prospectus, without the prior written consent of the Representative, offer, sell or contract to sell, register with the Commission or otherwise dispose of, directly or indirectly, or announce the offering of, any shares of Common Stock other than the Securities or any securities convertible into, or exchangeable for, shares of Common Stock; provided, however, that the Fund may issue and will not permit sell -------- ------- Common Stock pursuant to any dividend reinvestment plan of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted the Fund in effect at the Exchange Offer to be cancelledExecution Time.
(g) The Bank Fund will cooperate with apply the Dealer Manager net proceeds from the sale of the Underwritten Securities, and use its commercially reasonably best efforts to permit of the Registered ADSs to be eligible Option Securities, if any, for clearance and settlement through The Depository Trust Companythe purposes set forth in the Prospectus.
(h) The Bank agrees Fund will use its best efforts to pay or cause list, subject to notice of issuance, the Securities to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred sold by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs it on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection Exchange simultaneously with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities effectiveness of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Registration Statement.
Appears in 1 contract
Samples: Underwriting Agreement (Salomon Brothers High Income Fund Ii Inc)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose of which the Company is aware and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable efforts best effort to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After If the consummation of the Exchange OfferCompany elects to rely upon Rule 462(b), the Bank Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(de) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(ef) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction where it is not now so subject or subject it to taxation in which any jurisdiction where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank Company will cooperate not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Dealer Manager Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any shares of Common Stock other than those being issued pursuant hereto or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for a period of 180 days following the Execution Time, provided, however, that the Company may issue stock options, restricted stock and use other awards pursuant to its commercially reasonably best efforts employee or agent benefit plans described in the Prospectus (the "Benefit Plans"), issue and sell Common Stock pursuant to permit the Registered ADSs Benefit Plans (or pursuant to be eligible for clearance an outstanding option or award issued under such plans) and settlement through The Depository Trust Companythe Company may issue Common Stock issuable upon the conversion of the non-voting common stock of the Company outstanding at the Execution Time.
(h) The Bank Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith (the "Xxxxxxxx-Xxxxx Act"), and use all reasonable efforts to cause the Company's directors and officers, in their capacities as such, to comply in all material respects with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company will use the net proceeds received by it from the sale of the Underwritten Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company will its best efforts to effect and maintain the quotation of the Securities on the Nasdaq National Market and will file with the Nasdaq National Market all documents and notices required by the Nasdaq National Market of companies that have securities that are listed on the Nasdaq National Market.
(l) The Company will file with the Commission such information as may be required by Rule 463 under the Act.
(m) The Company, during the period when the Prospectus is required to be delivered under the Act or the Exchange Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the rules and regulations under the Exchange Act (the "Exchange Act Regulations").
(n) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky and insurance securities laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel counsel, not to exceed $10,000, for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel, not to exceed $15,000, for the Underwriters relating to such filings); (viii) the travel, transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholder of their obligations hereunder.
(o) The Company will use its obligations hereunder best efforts to obtain and furnish to the Representatives a letter substantially in the form of the letter contemplated by Section 6(k) from each stockholder that is not an officer or director and owns less than 5% of the Common Stock.
(p) The Company agrees to pay (1) all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Exchange Offer.
Directed Share Program, (i2) The Bank all costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Share Program material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with Citigroup Global Markets Inc. that the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program, if any.
Appears in 1 contract
Samples: Underwriting Agreement (National Atlantic Holdings Corp)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, and (vi) of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank will use its commercially reasonable efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).Registration
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager you that:
(a) Following the declaration of effectiveness The Company will furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company relating to the offering of the Notes and the Company will not use or refer to any proposed free writing prospectus to which you reasonably object.
(b) The Company will not take any action that would result in you or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by you or on your behalf that you otherwise would not have been required to file thereunder.
(c) If the Time of Sale Prospectus is being used to solicit offers to buy Notes at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of your counsel, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company will forthwith prepare, file with the Commission and furnish, at the ADR Company’s own expense, to you and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Bank Time of Sale Prospectus, as amended or supplemented, will use its best efforts comply with applicable law.
(d) Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs Notes pursuant to the Exchange Offerthis Agreement or pursuant to any Notes Terms Agreement, the Bank Company will not file any Time of Sale Prospectus or prospectus supplement (xincluding any product supplement or pricing supplement) relating to the Notes or any amendment to the Registration Statement relating to the Notes unless the Company has previously furnished to you a copy thereof for your review and will not file any such proposed supplement or amendment to which you reasonably object; provided, however, that the foregoing requirement shall not apply to any of the Company’s periodic filings with the Commission required to be filed pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies of which filings the Company will cause to be delivered to you promptly after being transmitted for filing with the Commission. Subject to the foregoing sentence, the Company will promptly cause each supplement to the Basic Prospectus relating to the Notes (including any product supplement or pricing supplement) to be filed with or transmitted for filing to the Commission in accordance with Rule 424(b) under the Securities Act. The Company will promptly advise you (i) of the filing of any amendment or supplement to the Basic Prospectus, (ii) of the filing and effectiveness of any amendment to the Registration Statement, (iii) of any request by the Commission for any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank will promptly advise you (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated therein, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offer, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Basic Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or notice of suspension of qualification and, if issued, to obtain as soon as possible the withdrawal thereof. If the Basic Prospectus is amended or supplemented as a result of the filing under the Exchange Act of any document incorporated by reference in the Prospectus, you shall not be obligated to solicit offers to purchase Notes so long as you are not reasonably satisfied with such document.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(de) If, at any time prior when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) relating to the Settlement DateNotes is required to be delivered under the Securities Act, any event occurs or condition exists as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any an untrue statement of a material fact fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under which they were madethe Securities Act), as then amended or supplemented, is delivered to a purchaser, not misleading, or if if, in your opinion or in the opinion of the Company, it should be is necessary at any time to amend or supplement the Registration StatementProspectus, the ADR Registration Statement as then amended or the Exchange Offer Prospectus supplemented, to comply with applicable law, the Bank Company will promptly: immediately notify you by telephone (iwith confirmation in writing) notify to suspend solicitation of offers to purchase Notes and, if so notified by the Dealer Manager of any Company, you shall forthwith suspend such event solicitation and cease using the Prospectus, as then amended or non-compliance supplemented. If the Company shall decide to amend or supplement the Registration Statement or Prospectus, as then amended or supplemented, it shall so advise you promptly by telephone (with confirmation in writing) and, at which time its expense, shall prepare and cause to be filed promptly with the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare Commission an amendment or supplement to the Registration Statement or Prospectus, as then amended or supplemented, that will correct such statement or omission or effect such compliance; compliance and (iiiwill supply such amended or supplemented Prospectus to you in such quantities as you may reasonably request. If any documents, certificates, opinions and letters furnished to you pursuant to Section 3(i) supply any below and Sections 5(a), 5(b) and 5(c) in connection with the preparation and filing of such amendment or supplement are satisfactory in all respects to you, upon the filing with the Commission of such amendment or supplement to the Dealer Manager Prospectus or upon the effectiveness of an amendment to the Registration Statement, you will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this Section 3(e), until the distribution of any Notes you may own as principal has been completed, if any event described above in this Section 3(e) occurs, the Company will, at its own expense, forthwith prepare and counsel for cause to be filed promptly with the Dealer Manager without charge Commission an amendment or supplement to the Registration Statement or Prospectus, as then amended or supplemented, satisfactory in all respects to you, will supply such amended or supplemented Prospectus to you in such quantities as you may reasonably request and shall furnish to you pursuant to Section 3(i) below and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters as you may request in connection with the Dealer Manager preparation and filing of such amendment or supplement.
(f) The Company will make generally available to its security holders and to you as soon as practicable earning statements that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering a period of at least twelve months beginning, in each case, not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration Statement with respect to each sale of Notes.
(g) The Company will furnish in New York City, without charge, (i) to you, a signed copy of the Registration Statement, including exhibits and all amendments thereto, and as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto as you may reasonably request and (ii) to the extent that you purchase Notes pursuant to a Notes Terms Agreement or solicit an offer to purchase Notes that is accepted by the Company, prior to 10:00 a.m. New York City time on the business day next succeeding the date of such Notes Terms Agreement or the acceptance of such offer, as many copies of the Prospectus, as then amended or supplemented (including the Time of Sale Prospectus and the Prospectus Supplement relating to the Notes to be purchased pursuant to such Notes Terms Agreement or accepted offer), as you may reasonably request.
(eh) The Bank Company will use its best efforts in cooperation with endeavor to qualify the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Notes for offer by the Dealer Manager and sale under the securities or Blue Sky laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event you shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposereasonably request.
(fi) The Bank will notDuring the term of this Agreement, the Company shall furnish to you such relevant documents and will not permit certificates of officers of the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Basic Prospectus, any amendments or supplements thereto, any Time of Sale Prospectus, the Indenture, the Notes, this Agreement, the Administrative Procedures, any Notes Terms Agreement and the performance by the Company of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer obligations hereunder or thereunder as you may from time to be cancelledtime reasonably request.
(gj) The Bank will cooperate with Company shall notify you promptly in writing of any downgrading, or of its receipt of any notice of any intended or potential downgrading or of any review for possible change that does not indicate the Dealer Manager and use its commercially reasonably best efforts to permit direction of the Registered ADSs to be eligible possible change, in the rating accorded the Company or any of the securities of the Company or in the rating outlook for clearance and settlement through The Depository Trust Companythe Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(hk) The Bank agrees to Whether or not any sale of Notes is consummated or this Agreement or any Notes Terms Agreement is terminated, the Company will pay or cause to be paid the costs and all expenses relating incident to the following mattersperformance of its obligations under this Agreement and any Notes Terms Agreement including: (i) the fees, disbursements and expenses of the BankCompany’s counsel and accountants the Company’s accountants, of the Trustee and its counsel, in connection with the registration and delivery of the Registered ADSs Notes under the Securities Act and all other fees or expenses in connection with the preparation, printing preparation and filing with the Commission of the Registration Statement, the ADR Registration Statement and Prospectus, any preliminary prospectus, the Exchange Offer Prospectus Time of Sale Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements thereto to any of the foregoing, including the filing fees payable to the Commission relating to the Notes (within the time required by Rule 456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to you and the Dealer Manager, as maydealers, in each casethe quantities hereinabove specified, be reasonably requested for use (ii) all costs and expenses related to the transfer and delivery of the Notes to you, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in connection with the conduct offer and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement Notes under state securities laws and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use all expenses in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs Notes for offer and sale under the blue sky state securities laws of the several states or any non-U.S. jurisdiction (as provided in Section 3(h) hereof, including filing fees and the reasonable fees and expenses disbursements of your counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants such qualification and in connection with the Exchange Offer; Blue Sky or legal investment memorandum, (viiiv) all filing fees and expenses the reasonable fees and disbursements of your counsel incurred in connection with the review and qualification of the offering of the Notes by the Financial Industry Regulatory Authority, Inc., (v) any fees charged by the rating agencies for the rating of the Notes, (vi) all fees and expenses in connection with the preparation and filing of any registration statement on Form 8-A relating to any Notes and all costs and expenses incident to listing the Registered ADSs Notes on any national securities exchanges and foreign stock exchanges, (vii) the New York Stock Exchange; cost of the preparation, issuance and delivery of the Notes, (viii) the costs and charges of any trustee, transfer agent, registrar or depositary, (ix) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (x) the document production charges and expenses associated with printing this Agreement, the Indenture and any Notes Terms Agreement, (xi) the fees and disbursements of your counsel incurred in connection with the offering and sale of the Notes, including any opinions to be rendered by such counsel hereunder, (xii) any out of pocket expenses incurred by you (provided that any advertising expenses incurred by you shall have been approved by the Company) and (viiixiii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section and Section 6 entitled “Indemnification and Contribution,” you will pay all of your costs and expenses, including fees and disbursements of your counsel, transfer taxes payable on resale of any of the Notes by the Bank of its obligations hereunder you and in connection any advertising expenses connected with the Exchange Offerany offers you may make.
(il) The Bank If the third anniversary of the initial effective date of the Registration Statement occurs during an offering of Notes before all of the Notes then being offered have been sold by you, prior to the third anniversary the Company will comply file a new shelf registration statement and take any other action necessary to permit the public offering of the Notes to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission or that automatically becomes effective upon filing with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Commission in accordance with Rule 462(e) under the Securities Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(jm) The Bank will, for a During the period of twelve months following beginning on the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies date of any reports Notes Terms Agreement and financial statements furnished continuing to and including the Settlement Date with respect to such Notes Terms Agreement, the Company will not, without your prior consent, offer, sell, contract to sell or filed or submitted with the Commission or otherwise dispose of any securities exchange on which any class of debt securities of the Bank is listed Company substantially similar to the Notes set forth in such Notes Terms Agreement (other than (A) the Notes that are to be sold pursuant to such Notes Terms Agreement, (B) Notes previously agreed to be sold by the Company and (iiC) such additional information concerning commercial paper issued in the business and financial condition ordinary course of business), except as may otherwise be provided in the applicable Notes Terms Agreement.
(n) Unless otherwise notified by you, the Company will prepare a final term sheet (a “Term Sheet”) relating to each offering of the Bank as Notes, containing only information that describes the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts final terms of the Bank Notes or the offering, in a form consented to by you, and its subsidiaries are consolidated in reports furnished to stockholders)will file such Term Sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Notes.
Appears in 1 contract
Samples: Distribution Agreement (Morgan Stanley Capital Trust XI)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following The Company will use its commercially reasonable best efforts to cause the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments supplemented Prospectus to you and supplements thereto your counsel in such quantities as the Dealer Manager you may reasonably request.
(c) After As soon as practicable, the consummation of Company will timely file such reports pursuant to the Exchange Offer, the Bank will Act as necessary to make generally available to its security holders and to the Representatives an earnings earning statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any shares of Common Stock (other than the Securities) or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock, or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of this Agreement; provided, however, that the Company may grant options to purchase shares of Common Stock and will not permit any issue shares of Common Stock upon the exercise of outstanding options under stock option plans existing as of the date of this Agreement or in accordance with the terms of its Affiliates to401(k) plan or its employee stock purchase plan and may issue or sell Common Stock and/or securities convertible into, resell or exercisable or exchangeable for, Common Stock in connection with an acquisition or business combination and may file a registration statement with the Commission with respect to any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted such securities as long as the acquiror of such Common Stock agrees in the Exchange Offer writing to be cancelledbound by the obligations and restrictions set forth in this Section 5(i)(f) for the period set forth herein.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder. The several Selling Stockholders agree to (i) pay the fees and in connection with expenses of their respective counsel and (ii) all other costs and expenses incident to the Exchange Offerperformance by the Selling Stockholders of their obligations hereunder.
(iii) The Bank Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Sarbanes Oxley Actdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder), and use its best efforts directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company (other than the Securities) or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to cause the Bank’s directors and officers, in their capacities as such, to comply with effect any such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 90 days after the Commencement Datedate of this Agreement, furnish other than shares of Common Stock disposed of as bona fide gifts approved by Xxxxxxx Xxxxx Xxxxxx Inc.; provided, however, that sales of Common Stock by Selling Stockholders subject to this Section 5(ii) (a) made pursuant to plans created under Rule 10b5-1 of the Exchange Act that were in existence as of October 29, 2001 shall not be subject to any restriction under the terms of this Section 5(ii)(a), except for Common Stock owned by either Xxxxxxx X. Xxxxxxx or Xxxxxx X. Xxxxxxx, neither of whom shall be permitted to sell Common Stock (other than the Securities) for the duration of the 90-day period set forth in this Section 5(ii)(a).
(b) Such Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change in the Company's condition (financial or otherotherwise), prospects, earnings, business or properties, (ii) generally made available any change in information in the Registration Statement or the Prospectus relating to stockholders, and deliver such Selling Stockholder or (iii) any new material information relating to the Dealer Manager Company or relating to any matter stated in the Prospectus which comes to the attention of such Selling Stockholder. A Selling Stockholder that becomes aware of information that may be responsive to clauses (i) or (iii) of the preceding sentence shall not be required to report such information to the Underwriters so long as soon (A) such information was received (or deemed received) solely by virtue of such Selling Stockholder's status (or such Selling Stockholder's employee's status) as they are available, copies a director of any reports the Company and financial statements furnished to or filed or submitted (B) the Board of Directors of the Company has made an affirmative determination that such information is not material.
(d) Such Selling Stockholder will comply with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated agreement contained in reports furnished to stockholdersSection 5(i)(h).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank and its Subsidiaries Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request; provided that hte printing and delivery cost for any copies of the preliminary prospectus for the prospectus and any supplement thereto requested by the Representatives on any date more than 9 months after the closing date shall be borne by the Underwriters.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, that-------- -------the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time or in effect as a result of the acquisition with Contigo and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: :
(i1) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (2) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange OfferSecurities; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii3) 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; (iv4) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v5) the registration of the Securities under the Exchange Act and the quoting of the Securities on the Nasdaq National Market; (6) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi7) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (8) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (vii9) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viii10) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder.
(i) In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc. will notify the Company as to which Participants will need to be so restricted. The Company will direct the removal of such transfer restrictions upon the expiration of such period of time.
(j) The Company will pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Exchange OfferDirected Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(i) The Bank Company will enforce, and take all necessary actions to secure full compliance with the lock-up agreements provisions of Section 5.15 of the Agreement and Plan of Reorganization dated March 24, 2000 (the "Contigo Agreement") by and among the Company, Contigo and CSI, and (ii) the Company will not modify the terms of, or waive any of its rights under such lock-up agreements without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc. Furthermore, the Company covenants with Xxxxxxx Xxxxx Barney Inc. that the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program.
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible practicable the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit any without the prior written consent of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, Xxxxx Xxxxxx Inc. for a period of twelve months 120 days following the Commencement DateExecution Time, furnish offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Dealer Manager all reports disposition (whether by actual disposition or other communications (financial effective economic disposition due to cash settlement or otherotherwise) generally made available to stockholders, and deliver to by the Dealer Manager (i) as soon as they are available, copies Company or any affiliate of the Company or any reports and financial statements furnished to or filed or submitted person in privity with the Commission Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any other shares of Common Stock or any securities exchange on which convertible into, or exchangeable for, shares of Common Stock; provided, however, that the Company may issue and sell Common Stock pursuant to any class employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Execution Time.
Appears in 1 contract
Samples: Underwriting Agreement (Fossil Inc)
Agreements. The Bank (i) Each of the Company and the Subsidiary Guarantors agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank It will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank it will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless you with have been furnished a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank it will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank It will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank It will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, it promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After Through the consummation timely filing of periodic reports under the Exchange OfferAct, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank and Company, its Subsidiaries and the Subsidiary Guarantors which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company and the Subsidiary Guarantors will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company and the Subsidiary Guarantors will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company or any Subsidiary Guarantor be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is such a consent has not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect been previously filed or to the suspension of the qualification of the Registered ADSs for sale subject itself to taxation in any jurisdiction or wherein it would not otherwise be subject to tax but for the initiation or threatening requirements of any proceeding for such purposethis paragraph.
(f) The Bank It will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc. and will not permit Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person with whom the Company or any affiliate of the Company has an agreement with respect to securities of the Company), directly or indirectly, any high yield debt securities issued or guaranteed by the Company or warrants to purchase high yield debt securities of the Company (other than the Securities) or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement.
(g) The Bank It will cooperate with not take, directly or indirectly, any action that constitutes or that is designed to or might reasonably be expected to cause or result in, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(hii) The Parent agrees with the several Underwriters that:
(a) The Parent will not, without the prior written consent of Xxxxxxx Xxxxx Barney Inc. and Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Parent or any affiliate of the Parent or any person with whom the Parent or any affiliate of the Parent has an agreement with respect to securities of the Company), directly or indirectly, any high yield debt securities issued or guaranteed by the Company or warrants to purchase high yield debt securities of the Company or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement.
(b) The Parent will advise the Representatives promptly, and if requested by the Representatives, will confirm such advice in writing, (1) until the Closing Date, of any material change in the Company's condition (financial or otherwise), earnings, business or properties or any new material information relating to the Company or relating to any matter stated in the Prospectus which comes to the attention of the Parent and (2) so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement or the Prospectus relating to the Parent.
(c) The Parent agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i1) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Prospectus and amendments each amendment or supplement to any of them; (2) the printing (or reproduction) and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange OfferSecurities; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii3) 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; (iv4) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi7) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (8) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (vii9) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's, the New York Stock ExchangeSubsidiary Guarantors' and the Parent's accountants and the fees and expenses of counsel (including local and special counsel) for the Company, the Subsidiary Guarantors and the Parent; and (viii10) all other costs and expenses incident to the performance by the Bank Company, the Subsidiary Guarantors and the Parent of its their obligations hereunder hereunder.
(iii) Each Underwriter severally represents and agrees that:
(a) it has not offered or sold and, prior to the expiry of six months from the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(b) it has only communicated and caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 ("FSMA")) received by it in connection with the Exchange Offer.issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(ic) The Bank it has complied and will comply with all applicable securities and other lawsprovisions of the FSMA with respect to anything done by it in relation to the Securities in, rules and regulations, including, without limitation, from or otherwise involving the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.United Kingdom; and
(jd) the offer in The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities Netherlands of the Bank Securities is listed exclusively limited to persons who trade or invest in securities in the conduct of a profession or business (which include banks, stockbrokers, insurance companies, pension funds, other institutional investors and (ii) such additional information concerning the business finance companies and financial condition treasury departments of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholderslarge enterprises).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSs, Securities in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposesubject .
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Barney Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction for a period of 180 days following the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses in stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. (a) The Bank Company agrees with the Dealer Manager several Underwriters that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative (i) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (i) notify the Representative of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(ciii) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Bank Company and its Subsidiaries the Subsidiary which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(div) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representative and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representative may reasonably request.
(ev) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fvi) The Bank Company will not, and will not permit for a period of 180 days following the Execution Time, without the prior written consent of C.E. Unterberg, Towbin LLC, offer, sell or contract to sell, pxxxxx, xx xxxxrwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, or publicly announce an intention to be cancelledeffect any such transaction, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(gvii) The Bank Company will cooperate comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Dealer Manager Sarbanes-Oxley Act, and to use its commercially reasonably best efforts to permit cause the Registered ADSs Cxxxxxx'x xxxxxtors and officers, in their capacities as such, to be eligible for clearance comply with such laws, rules and settlement through The Depository Trust Companyregulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
(hviii) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ix) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq SmallCap Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection hereunder.
(b) The Selling Stockholder agrees with the Exchange Offer.several Underwriters that:
(i) The Bank Selling Stockholder will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank willnot, for a period of twelve months 180 days following the Commencement DateExecution Time, furnish without the prior written consent of C.E. Unterberg, Towbin LLC, offer, sell or contract to sell, pxxxxx, xx xxxxrwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Dealer Manager all reports disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with such Stockholder or any affiliate of the Selling Stockholder) 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 other communications (financial shares of Common Stock or other) generally made available any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, or publicly announce an intention to stockholderseffect any such transaction, and deliver to the Dealer Manager provided, however, that nothing in this clause (i) shall prohibit the Selling Stockholder from disposing any shares of Common Stock (x) as soon contemplated by this Agreement; (y) as they are availablea bona fide gift or gifts, copies provided the donee or donees thereof agree in writing to be bound by this restriction; or (z) as a distribution to members, partners or shareholders of any reports and financial statements furnished such person, provided that the distributees thereof agree in writing to or filed or submitted with be bound by the Commission or any securities exchange on which any class terms of securities of the Bank is listed and this restriction;
(ii) such additional information concerning The Selling Stockholder 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 business and financial condition Exchange Act or otherwise, stabilization or manipulation of the Bank price of any security of the Company to facilitate the sale or resale of the Securities.
(iii) The Selling Stockholder will advise the Representative promptly, and if requested by the Representative, will confirm such advice in writing, so long as the Dealer Manager may from time to time reasonably request (such statements to be on delivery of a consolidated basis prospectus relating to the extent Securities may be required under the accounts Act, of any change in information in the Bank and its subsidiaries are consolidated in reports furnished Registration Statement or Prospectus relating to stockholders)the Selling Stockholder.
Appears in 1 contract
Samples: Underwriting Agreement (Tejas Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when 14 15 the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts cooperate and assist in cooperation any filings required to be made with the Dealer Manager to arrange, if necessary, for NASD and in the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank performance of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in due diligence investigation by any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted broker/dealer participating in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following The Company will use its reasonable best efforts to cause the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives (which approval shall not be unreasonably withheld) with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period therein prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its reasonable best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise subject or take any action which would subject the Dealer Manager of the receipt by the Bank of any notification with respect Company to the suspension of the qualification of the Registered ADSs for sale taxation in any jurisdiction or the initiation or threatening of any proceeding for such purposewhere it is not already subject to taxation.
(f) The Bank Company will not, without the prior written consent of Citigroup Global Markets Inc. and will not permit Xxxxxx Xxxxxxx & Co. Incorporated, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Carolina Group Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Carolina Group Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that the Company may issue options and sell Carolina Group Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time or as described in the Final Prospectus.
(g) The Bank Except as disclosed in the Final Prospectus, the Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), the ADR Registration Statement Basic Prospectus, each Preliminary Final Prospectus, the Final Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, the Basic Prospectus, each Preliminary Final Prospectus, the Final Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or (including filing fees and the reasonable fees and expenses of counsel, up to $5,000, for the Underwriters relating to such registration and qualification); (vii) any non-U.S. jurisdiction filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for to the Dealer Manager relating Underwriters related to such registration and qualification)filings; (viviii) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Loews Corp)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its the Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx, for a period of 180 days following the Execution Time, offer, sell or contract to sell, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, any other shares of Common Stock or any securities convertible into, or exchangeable for, shares of Common Stock; provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several International ----------- Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain the effectiveness of cause the Registration Statement Statements, if not effective at the Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement Statements or the ADR Registration Statement or (y) any supplement to the Exchange Offer Basic Prospectus without first providing or any Rule 462(b) Registration Statements unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statements have become or become effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus Final Prospectuses is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer ProspectusFinal Prospectuses, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the International Representatives of such timely filing. The Bank Company will promptly advise you the International Representatives (i1) when the Registration Statement and Statements, if not effective at the ADR Registration Statement, and any amendment theretoExecution Time, shall have become effective, (ii2) when the Exchange Offer ProspectusFinal Prospectuses, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statements shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement Statements shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statements, or the ADR any Rule 462(b) Registration Statement Statements, or for any supplement to the Exchange Offer Prospectus Final Prospectuses or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement Statements or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Securities Act, any event occurs as a result of which either of the Exchange Offer Prospectus, Final Prospectuses as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statements or supplement either of the Registration Statement, Final Prospectuses to comply with the ADR Registration Statement Securities Act or the Exchange Offer Prospectus to comply with applicable lawAct or the respective rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager International Representatives of any such event or non-compliance at which time event; (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiii)(a) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any such amendment or supplement supplemented Final Prospectuses to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(d) The Company will furnish to the International Representatives and counsel for the International Underwriters, without charge, a conformed copy of the Registration Statements (including exhibits thereto) and to each other International Underwriter a copy of the Registration Statements (without exhibits thereto) and, so long as delivery of a prospectus by an International Underwriter or dealer may be required by the Securities Act, as many copies of the International Preliminary Prospectus and the International Final Prospectus and any supplement thereto as the International Representatives may reasonably request. The Company will pay the expenses of printing or other production of all such documents.
(e) The Bank Company will use its best efforts in cooperation cooperate with the Dealer Manager to arrangeRepresentatives in arranging, if necessaryat the Company's cost, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager International Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe sale of the International Securities; provided provided, however, that in no event connection therewith the Company shall the Bank not be obligated required to qualify to do business in any jurisdiction in which it is not now so qualified as a foreign corporation or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out any jurisdiction or subject itself to taxation in excess of the offering of the Registered ADSs, a nominal dollar amount in any such jurisdiction in which where it is not now so then subject. The Bank Company promptly will promptly advise the Dealer Manager International Representatives of the receipt by the Bank it of any notification with respect to the suspension of the qualification of the Registered ADSs International Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx, offer, sell, contract to sell, issue, announce the offering or issuance of or otherwise dispose of, directly or indirectly, register, cause to be registered or announce the registration or intended registration of, in any case for its own account, any shares of Common Stock, including any such shares beneficially or indirectly owned or controlled by the Company, or any securities convertible into or exchangeable for Common Stock, for a period of 90 days from the date of the International Final Prospectus, except for: (A) up to 3,000,000 shares of Common Stock in the aggregate issued in connection with acquisitions (including by consolidation, merger or similar transaction and will not permit including acquisitions of shares of any of its Affiliates tosubsidiaries held by minority shareholders), resell any Registered ADSs provided that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in more than 3,000,000 such shares may be issued to the Exchange Offer extent the purchaser or purchasers of such excess shares agree to be cancelledbound by the provisions of this paragraph for any remaining portion of such 90-day period, (B) Common Stock issued pursuant to any employee benefit plan, stock ownership or stock option plan or dividend reinvestment plan in effect on the Execution Date or options granted pursuant to any such plan in effect on the Execution Date, provided that such options cannot be exercised for any remaining portion of such 90-day period, (C) Common Stock issued in connection with the inclusion of the Common Stock in any Major Market Index, (D) maintaining the effectiveness of any registration statement in place on the Execution Date or otherwise permitted to be filed under this paragraph, (E) Common Stock issued in connection with the exercise of any warrants outstanding on the Execution Date, (F) Common Stock issued to prospective employees in connection with such employees being hired by the Company, (G) the Securities, the Convertible Notes issuable under the Underwriting Agreement, dated February 23, 2000, among the Company and the representatives of the underwriters listed therein, the Common Stock issuable upon conversion of such Convertible Notes and upon conversion of the Company's existing 6% Convertible Subordinated Notes due 2009 and (H) the filing, announcing or amending of a shelf registration for up to $5 billion of securities, provided, however, that this clause (H) shall not permit the actual offering, or "take down" of any such securities during such 90-day period.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company will apply the net proceeds from the sale of the Securities sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Final Prospectuses.
(ii) Each International Underwriter agrees to pay or cause to be paid the costs and expenses relating to the following matters: that (i) the fees, disbursements and expenses it is not purchasing any of the Bank’s counsel and accountants in connection with International Securities for the registration account of the Registered ADSs under the Act and all other expenses in connection with the preparationany United States or Canadian Person, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement it has not offered or sold, and the Registered Deposit Agreementwill not offer or sell, the deposit directly or indirectly, any of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, International Securities or distribute any International Prospectus to any person in the event that an information agent is appointedUnited States or Canada, such information agentor to any United States or Canadian Person, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; and (iii) any dealer to whom it may sell any of the preparationInternational Securities will represent that it is not purchasing for the account of any United States or Canadian Person and agree that it will not offer or resell, printingdirectly or indirectly, authenticationany of the International Securities in the United States or Canada, issuance or to any United States or Canadian Person or to any other dealer who does not so represent and delivery agree; provided, however, that the foregoing shall not restrict (A) purchases and sales between the U.S. Underwriters on the one hand and the International Underwriters on the other hand pursuant to the Agreement Between U.S. Underwriters and International Underwriters, (B) stabilization transactions contemplated under the Agreement Between U.S. Underwriters and International Underwriters, conducted through Xxxxxxx Xxxxx Barney Inc. (or through the U.S. Representatives and International Representatives) as part of certificates for the distribution of the Securities, including and (C) sales to or through (or distributions of International Final Prospectuses or International Preliminary Prospectuses to) persons not United States or Canadian Persons who are investment advisors, or who otherwise exercise investment discretion, and who are purchasing for the account of any stamp United States or transfer taxes in connection with the original issuance and sale Canadian Person.
(iii) The agreements of the SecuritiesInternational Underwriters set forth in paragraph (ii) of this Section 5 shall terminate upon the earlier of the following events:
(a) a mutual agreement of the U.S. Representatives and the International Representatives to terminate the selling restrictions set forth in paragraph (ii) of this Section 5 and in Section 5(ii) of the U.S. Underwriting Agreement; or
(b) the expiration of a period of 30 days after the Closing Date, unless (A) the International Representatives shall have given notice to the Company and the U.S. Representatives that the distribution of the International Securities by the International Underwriters has not yet been completed, or (B) the U.S. Representatives shall have given notice to the Company and the International Underwriters that the distribution of the U.S. Securities by the U.S. Underwriters has not yet been completed. If such notice by the U.S. Representatives or the International Representatives is given, the agreements set forth in such paragraph (ii) shall survive until the earlier of (1) the event referred to in clause (a) of this subsection (iii) or (2) the expiration of an additional period of 30 days from the date of any such notice.
(iv) Each International Underwriter severally represents and agrees that:
(a) it has not offered or sold and, prior to the printing expiry of six months from the Closing Date, will not offer or sell any International Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (whether as principal or reproductionagent) for the purpose of their businesses or otherwise in circumstances which have not resulted and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered will not result in connection with an offer to the Exchange Offer; (v) any registration or qualification public in the United Kingdom within the meaning of the Registered ADSs for offer and sale under the blue sky laws Public Offers of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.Securities Regulations 1995;
(ib) The Bank it has complied and will comply with all applicable securities and other lawsprovisions of the Financial Services Xxx 0000 with respect to anything done by it in relation to the International Securities, rules and regulationsin, including, without limitation, from or otherwise involving the Sarbanes Oxley ActUnited Kingdom; and
(c) it has only issued or passed on, and use its best efforts to cause the Bank’s directors and officers, in their capacities as suchwill only issue or pass on, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following any person in the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of United Kingdom any reports and financial statements furnished to or filed or submitted document received by it in connection with the Commission or any securities exchange on which any class of securities issue of the Bank International Securities if that person is listed and (iiof a kind described in Article 11(3) such additional information concerning the business and financial condition of the Bank Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996 (as amended), or is a person to whom the Dealer Manager document may from time to time reasonably request (such statements to otherwise lawfully be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)issued or passed on.
Appears in 1 contract
Samples: International Underwriting Agreement (Level 3 Communications Inc)
Agreements. The Bank Company agrees with the Dealer Manager Underwriter that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Underwriter of such timely filing. The Bank Company will promptly advise you the Underwriter (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Final Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).or
Appears in 1 contract
Agreements. (a) The Bank Company agrees with the Dealer Manager several Convertible Notes Underwriters that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (iA) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (iiB) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iiiC) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (ivD) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (vE) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viF) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (A) notify the Representatives of any such event, (B) prepare and file with the Commission, subject to the second sentence of subparagraph (a)(i) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (C) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(ciii) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(div) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Convertible Notes Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Convertible Notes Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by a Convertible Notes Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(ev) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, or taxation in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fvi) The Bank Company will reserve and keep available at all times, free of preemptive rights, the full number of shares of Common Stock issuable upon conversion of the Securities.
(vii) The Company will not, and will not permit without the prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or xxxxxwxxx xxspose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition of (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act with respect to, any other shares of Common Stock or shares of the Company's Class B Common Stock ("Class B Common Stock") or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock or shares of Class B Common Stock (including the Securities); or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Convertible Notes Underwriting Agreement, provided, however, that (A) the Company may issue and sell Common Stock in the concurrent offering of the Common Stock contemplated by the Prospectus, (B) the Company may issue shares of Common Stock upon conversion of the Securities, (C) the Company may grant options to purchase shares of Common Stock or Class B Common Stock, (D) the Company may issue shares of Common Stock or Class B Common Stock upon the conversion of securities or the exercise of warrants outstanding at the Execution Time or upon the exercise of options under its stock option plans, (E) the Company may issue restricted shares of Common Stock or Class B Common Stock pursuant to the Company's 2002 stock incentive plan, (F) the Company may issue or sell shares of Common Stock or Class B Common Stock in connection with an acquisition or business combination and (G) the Company may issue shares of Common Stock or Class B Common Stock in connection with the transactions contemplated under the heading "Summary -- Our Corporate Reorganization" in the Prospectus.
(gviii) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(hix) Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price of the Securities.
(x) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (iA) the fees, disbursements preparation of the Indenture and other document relating to the issuance of the Securities and the issuance of the Common Stock upon conversion of the Securities; (B) the fees and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with Trustee; (C) the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (D) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange OfferSecurities; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iiiE) 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; (ivF) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (vG) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (H) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Convertible Notes Underwriters relating to such registration and qualification); (viI) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Convertible Notes Underwriters relating to such filings); (J) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiK) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiiL) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection hereunder.
(b) Citigroup agrees with the Exchange Offer.several Convertible Notes Underwriters that:
(i) The Bank Citigroup will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or xxxxxwxxx xxspose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Sarbanes Oxley Actdisposition of (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), and use its best efforts 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 with respect to, any other shares of Common Stock or shares of Class B Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock or shares of Class B Common Stock (including the Securities); or publicly announce an intention to cause the Bank’s directors and officers, in their capacities as such, to comply with effect any such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 180 days after the Commencement Datedate of the Convertible Notes Underwriting Agreement, furnish provided, however, that (A) the Company may issue and sell Common Stock in the concurrent offering of Common Stock contemplated by the Prospectus, (B) the Company may issue shares of Common Stock upon conversion of the Securities, (C) the Company may grant options to purchase shares of Common Stock or Class B Common Stock, (D) the Company may issue shares of Common Stock or Class B Common Stock upon the conversion of securities or the exercise of warrants outstanding at the Execution Time or upon the exercise of options under its stock option plans, (E) the Company may issue restricted shares of Common Stock or Class B Common Stock pursuant to the Dealer Manager all reports Company's 2002 stock incentive plan, (F) the Company may issue or other communications sell shares of Common Stock or Class B Common Stock in connection with an acquisition or business combination, (financial G) Citigroup may privately transfer shares of the Company's Common Stock or other) generally made available Class B Common Stock, as long as the acquirer of such shares agrees in writing to stockholdersbe bound by the obligations and restrictions set forth in this clause (i), and deliver to (H) the Dealer Manager (i) as soon as they are available, copies Company may issue shares of any reports and financial statements furnished to Common Stock or filed or submitted Class B Common Stock in connection with the Commission or any securities exchange on which any class of securities of transactions contemplated under the Bank is listed and heading "Summary -- Our Corporate Reorganization" in the Prospectus.
(ii) such additional information concerning Citigroup will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the business and financial condition Exchange Act or otherwise, in stabilization or manipulation of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts price of any security of the Bank and its subsidiaries are consolidated in reports furnished Company to stockholders)facilitate the sale or resale of the Securities.
Appears in 1 contract
Samples: Convertible Notes Underwriting Agreement (Travelers Property Casualty Corp)
Agreements. (a) The Bank Company agrees with the Dealer Manager several Underwriters that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement or (y) any supplement to unless the Exchange Offer Prospectus without first providing you with Company has furnished the Representatives a copy of for their review prior to filing and will not file any such amendment proposed amendment, supplement or supplementRule 462(b) Registration Statement to which they reasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii2) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv3) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or supplement to the Exchange Offer Final Prospectus or for any additional information, (v4) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi5) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and any amendments and supplements thereto in file with the Commission, subject to the second sentence of paragraph (a)(i) of this Section 4, an amendment or supplement which will correct such quantities as the Dealer Manager may reasonably requeststatement or omission or effect such compliance.
(ciii) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings earning statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(div) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ev) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out distribution of the offering Securities and will arrange for the determination of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager legality of the receipt Securities for purchase by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposeinstitutional investors.
(fvi) The Bank Until the business day following the Closing Date, the Company will not, and will not permit without the consent of the Representatives, offer, sell or contract to sell, or announce the offering of, any of its Affiliates to, resell debt securities covered by the Registration Statement or any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in other registration statement filed under the Exchange Offer to be cancelledAct.
(gb) The Bank If the Securities will cooperate with be offered and sold in jurisdictions outside the Dealer Manager United States, each Underwriter further agrees and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.hereby represents that:
(i) The Bank it has not offered or sold, and, prior to the expiration of the period of six months from the Closing Date, will not offer or sell any Securities to persons in the United Kingdom, except to those persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments, as principal or agent, for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995, as amended;
(ii) it has complied and will comply with all applicable securities provisions of the Financial Services Act 0000, xxth respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom;
(iv) it has only issued or passed on and other will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 0000 (Xxvestment Advertisements) (Exemptions) Order 1996, as amended, or is a person to whom the document may otherwise lawfully be issued or passed on;
(v) it will not offer or sell any Securities directly or indirectly in Japan or to, or for the benefit of any Japanese person or to others, for re-offering or re-sale directly or indirectly in Japan or to any Japanese person except under circumstances which will result in compliance with all applicable laws, rules regulations and regulationsguidelines promulgated by the relevant governmental and regulatory authorities in effect at the relevant time. For purposes of this paragraph, including"Japanese person" means any person resident in Japan, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports including any corporation or other communications (financial or other) generally made available to stockholders, and deliver to entity organized under the Dealer Manager (i) as soon as they are available, copies laws of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).Japan;
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company, directly or indirectly, or announce the offering of, any long-term debt securities issued or guaranteed by the Company or preferred stock (other than the Securities), until the Business Day set forth on Schedule I hereto.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses preparation of the Bank’s counsel and accountants in connection with Supplement, the registration issuance of the Registered ADSs under Securities and the Act and all other expenses in connection with fees of the Trustee; (ii) the preparation, printing and filing with the Commission or reproduction of the Registration Statement, the ADR Registration Statement and the Exchange Offer Preliminary Prospectus and amendments Final Prospectus and supplements thereto each amendment or supplement to either of them; (iii) the printing (or reproduction) and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Preliminary Prospectus and Final Prospectus, and all amendments or supplements to the Dealer Managereither of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange OfferSecurities; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iiiiv) 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; (ivv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (vvi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiviii) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and counsel (including local and special counsel); (ix) the New York Stock Exchange; fees and expenses of any rating agencies rating the Securities and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).the
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following The Company will comply with the declaration requirements of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Rule 430B. Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any 462(b) Registration Statement (including any amendment or supplement through incorporation by reference of any report filed under the 1000 Xxx) unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject The Company has given the Representatives notice of any filings made pursuant to the foregoing sentence, if 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Date and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing and will not file or use any such document to which the Exchange Offer Prospectus is required under Rule 424(b), Representatives or counsel for the Bank Underwriters shall reasonably object. The Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (ia) when of the effectiveness of any amendment to the Registration Statement, (b) of the transmittal to the Commission for filing of any supplement or amendment to the Prospectus or any document to be filed pursuant to the 1934 Act, (c) of the receipt of any comments from the Commission with respect to the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effectiveor Prospectus or documents incorporated or deemed to be incorporated by reference therein, (iid) when the Exchange Offer Prospectus, and of any supplement thereto or any document incorporated therein, shall have been filed (if required) with request by the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offer, for any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus with respect to the Securities or for any additional informationinformation relating thereto, (ve) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding proceedings for any such that purpose, and (vif) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification, and, if issued, to obtain as soon as possible possible, the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the 1933 Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe 1933 Act, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any supplemented Prospectus to the Underwriters in such quantities as they may reasonably request. If at any time after the date hereof, an event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is used, not misleading, the Company will promptly notify the Underwriters and will promptly amend or supplement in a manner reasonably satisfactory to the Underwriters, at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Securities) or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 6 hereof.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Dealer Manager Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 under the 1933 Act.
(d) The Company will furnish to the Representatives and counsel for the Dealer Manager without charge in such quantities Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the 1933 Act, as many copies of any preliminary prospectus and the Prospectus as the Dealer Manager Representatives may reasonably request.
(e) The Bank During the period from the date of this agreement through the five year anniversary hereof, the Company will use furnish upon request to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its best efforts in cooperation annual report to stockholders for such year; and the Company will furnish upon request to the Representatives as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Dealer Manager Commission under the 1934 Act or mailed to stockholders.
(f) The Company represents and agrees that, unless it obtains the prior written consent of the Underwriters, and each Underwriter agrees that, unless it obtains the prior written consent of the Company and the other Underwriters, it has not made and and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus”, as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission; provided, however, that prior to the preparation of the Prospectus in accordance with Section 5(a), the Underwriters are authorized to use the information with respect to the final terms of the Securities in communications orally conveying information relating to the offering to investors. Any such free writing prospectus consented to by the Company and the Underwriters is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that is has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
(g) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided provided, however, that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fh) The Bank For a period from the date of the Prospectus through and including the 60th day following the date of the Prospectus (the “Lock-up Period”), the Company will not, and will not permit any the Operating Partnership to offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement (except a registration statement on Form S-4 relating to the Company’s acquisition of its Affiliates another entity) under the 1933 Act relating to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted additional shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, including, without limitation, OP Units, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives, other than grants of stock options, PIUs, RSUs or restricted stock to employees, consultants or directors pursuant to the terms of a plan in effect as of the Exchange Offer date of the Prospectus, issuances of Common Stock in connection with redemptions of any OP Units and pursuant to be cancelleda dividend reinvestment plan (if any), issuances of Common Stock, OP Units or other securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of interests in real property, real property companies or entities owning interests in real property.
(gi) The Bank Company will cooperate with use its reasonable best efforts to meet the Dealer Manager requirements to qualify, for the taxable year ending December 31, 2007 and for each of its succeeding taxable years for so long as the Board of Directors of the Company deems it in the best interests of the Company’s stockholders to remain so qualified, for taxation as a REIT under the Code.
(j) The Company will use its best efforts to cause the Securities to be approved for listing, subject to official notice of issuance, on the NYSE prior to the Closing Date.
(k) The Company will use its commercially reasonably reasonable efforts to complete the construction of its properties that it owns as of the date hereof in accordance with the descriptions set forth in the Registration Statement, the General Disclosure Package and the Prospectus.
(l) For so long as the delivery of a prospectus is required by Federal or state law in connection with the offering or sale of the Securities, the Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to permit cause the Registered ADSs Company’s directors and officers, in their capacities as such, to be eligible for clearance comply in all material respects with such laws, rules and settlement through The Depository Trust Companyregulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(hm) The Bank Company will file with the Commission such reports as may be required pursuant to Rule 463 under the 1933 Act.
(n) Neither the Transaction Entities nor the Subsidiaries will 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 1934 Act or otherwise, stabilization or manipulation of the price of any of their securities to facilitate the sale or resale of the Securities.
(o) For so long as the delivery of a prospectus is required by Federal or state law in connection with the offering or sale of the Securities, the Company will take such steps as shall be necessary to ensure that none of the Transaction Entities shall become an “investment company” within the meaning of such term under the 1940 Act, and the rules and regulations of the Commission thereunder.
(p) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), any preliminary prospectus, the ADR Registration Statement Prospectus, any Permitted Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, any preliminary prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum or any supplement thereto and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the 1934 Act and the listing of the Securities on NYSE; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities, if any; (viiix) the fees and expenses incurred of the Company’s accountants, counsel (including local and special counsel) and transfer agent and registrar; (x) any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with listing attending or hosting meetings with prospective purchasers of the Registered ADSs on the New York Stock ExchangeSecurities; and (viiixi) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder; and (xii) the costs and expenses (including without limitation any damages or other amounts payable in connection with legal or contractual liability) associated with the Exchange Offerreforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of representation contained in the fourth paragraph of Section 1(a).
(iq) The Bank During the period when the Prospectus is required to be delivered by the Underwriters under the 1933 Act or the 1934 Act, the Company will (1) comply with all applicable securities provisions of the 1933 Act and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts (2) file all documents required to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or be filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis pursuant to the extent 1934 Act within the accounts of time periods required by the Bank and its subsidiaries are consolidated in reports furnished to stockholders)1000 Xxx.
Appears in 1 contract
Samples: Underwriting Agreement (American Campus Communities Inc)
Agreements. The Bank agrees Company and the Guarantor jointly and severally agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement The Company and the ADR Guarantor will use their best efforts to cause the Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereto, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company and the Guarantor will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company and the Guarantor have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantor will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed prescribed; prepared a final term sheet, containing solely a description of the Securities in a form approved by you and filed such term sheet pursuant to Rule 433(d) within the time period prescribed; will promptly file all other material required to be filed by the Company and the Guarantor with the Commission pursuant to Rule 433(d) and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company and the Guarantor will promptly advise you the Representatives (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when any Issuer Free Writing Prospectus shall have been filed with the Commission, (iv) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (ivv) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional information, (vvi) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vivii) of the receipt by the Bank Company or the Guarantor of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company and the Guarantor will use its commercially reasonable their best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered (or in lieu thereof, the Dealer Managernotice referred to in Rule 173(a) under the Act) under the Act, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company and any amendments the Guarantor promptly will prepare and supplements thereto in file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such quantities as the Dealer Manager may reasonably requeststatement or omission or effect such compliance.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Guarantor will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Guarantor and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company and the Guarantor will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company and the Guarantor will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company and the Guarantor will use its their best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that in no event neither the Company nor the Guarantor shall the Bank be obligated required to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is where they are not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Until the business day following the Closing Date, the Company and the Guarantor will not, and will not permit without the consent of the Representatives, offer, sell or contract to sell, or announce the offering of, any of its Affiliates to, resell debt securities covered by the Registration Statement or any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in other registration statement filed under the Exchange Offer to be cancelledAct.
(g) The Bank Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and the Guarantor will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and all expenses relating incident to the following mattersperformance of their obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Bank’s their counsel and the accountants in connection with the registration issuance and sale of the Registered ADSs under the Act Securities and all other fees or expenses in connection with the preparation, printing and filing with the Commission preparation of the Registration StatementPreliminary Final Prospectus, the ADR Registration Statement Pricing Disclosure Package, the Final Prospectus, any Issuer Free Writing Prospectuses prepared by or on behalf of, used by, or referred to by them and the Exchange Offer Prospectus and any amendments and supplements thereto to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as mayUnderwriters, in each casethe quantities herein above specified, be reasonably requested (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) any fees charged by rating agencies for use the rating of the Securities, (iv) the fees and expenses, if any, incurred in connection with the conduct and consummation admission of the Exchange Offer; Securities in any appropriate market system, (iiv) the preparation of this Agreement costs and the Registered Deposit Agreement, the deposit charges of the Registered ADSs under Trustee, (vi) the Registered Deposit Agreement, the issuance cost of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance Securities and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its their obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitationSection 7, the Sarbanes Oxley ActUnderwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies transfer taxes payable on resale of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Securities by them.
Appears in 1 contract
Samples: Underwriting Agreement (PNC Financial Services Group Inc)
Agreements. The Bank (i) Each of the Company and the Subsidiary Guarantors agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank It will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank it will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless you with have been furnished a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank it will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank It will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank It will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, it promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After Through the consummation timely filing of periodic reports under the Exchange OfferAct, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank and Company, its Subsidiaries and the Subsidiary Guarantors which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company and the Subsidiary Guarantors will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company and the Subsidiary Guarantors will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company or any Subsidiary Guarantor be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is such a consent has not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect been previously filed or to the suspension of the qualification of the Registered ADSs for sale subject itself to taxation in any jurisdiction or wherein it would not otherwise be subject to tax but for the initiation or threatening requirements of any proceeding for such purposethis paragraph.
(f) The Bank It will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc. and will not permit Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person with whom the Company or any affiliate of the Company has an agreement with respect to securities of the Company), directly or indirectly, any high yield debt securities issued or guaranteed by the Company or warrants to purchase high yield debt securities of the Company (other than the Securities) or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement.
(g) The Bank It will cooperate with not take, directly or indirectly, any action that constitutes or that is designed to or might reasonably be expected to cause or result in, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(hii) The Parent agrees with the several Underwriters that:
(a) The Parent will not, without the prior written consent of Xxxxxxx Xxxxx Barney Inc. and Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Parent or any affiliate of the Parent or any person with whom the Parent or any affiliate of the Parent has an agreement with respect to securities of the Company), directly or indirectly, any high yield debt securities issued or guaranteed by the Company or warrants to purchase high yield debt securities of the Company (other than the Securities) or publicly announce an intention to effect any such transaction, for a period of 180 days after the date of this Agreement.
(b) The Parent will advise the Representatives promptly, and if requested by the Representatives, will confirm such advice in writing, (1) until the Closing Date, of any material change in the Company's condition (financial or otherwise), earnings, business or properties or any new material information relating to the Company or relating to any matter stated in the Prospectus which comes to the attention of the Parent and (2) so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement or the Prospectus relating to the Parent.
(c) The Parent agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i1) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Prospectus and amendments each amendment or supplement to any of them; (2) the printing (or reproduction) and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange OfferSecurities; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii3) 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; (iv4) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi7) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (8) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (vii9) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's, the New York Stock ExchangeSubsidiary Guarantors' and the Parent's accountants and the fees and expenses of counsel (including local and special counsel) for the Company, the Subsidiary Guarantors and the Parent; and (viii10) all other costs and expenses incident to the performance by the Bank Company, the Subsidiary Guarantors and the Parent of its their obligations hereunder hereunder.
(iii) Each Underwriter severally represents and agrees that:
(a) it has not offered or sold and, prior to the expiry of six months from the Closing Date, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(b) it has only communicated and caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 ("FSMA")) received by it in connection with the Exchange Offer.issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company;
(ic) The Bank it has complied and will comply with all applicable securities and other lawsprovisions of the FSMA with respect to anything done by it in relation to the Securities in, rules and regulations, including, without limitation, from or otherwise involving the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.United Kingdom; and
(jd) the offer in The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities Netherlands of the Bank Securities is listed exclusively limited to persons who trade or invest in securities in the conduct of a profession or business (which include banks, stockbrokers, insurance companies, pension funds, other institutional investors and (ii) such additional information concerning the business finance companies and financial condition treasury departments of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholderslarge enterprises).
Appears in 1 contract
Samples: Underwriting Agreement (Constar Inc)
Agreements. The Bank Company agrees with the Dealer Manager you that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferNotes, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Prospectus (except for (i) periodic or current reports filed under the Exchange Offer Prospectus without first providing Act, (ii) a Pricing Supplement or (iii) a supplement relating to an offering of Debt Securities other than the Notes) unless the Company has furnished each of you with a copy for your review prior to filing and given each of you a reasonable opportunity to comment on any such proposed amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause each supplement to the Exchange Offer Prospectus, properly completed, and any supplement thereto Prospectus to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filingprescribed. The Bank Company will promptly advise each of you (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424, (iiiii) when, prior to the termination of the offering of the Registered ADSs pursuant to the Exchange OfferNotes, any amendment to of the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateNotes is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any an untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or to supplement the Exchange Offer Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, the Bank Company promptly will promptly: (i) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Dealer Manager Company, each of any you shall forthwith suspend such event or non-compliance at which time solicitation and cease using the Dealer Manager shall be entitled to cease soliciting tenders until such time Prospectus as the Bank has complied with clause (iii) of this sentence; then supplemented), (ii) prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii) supply any supplemented Prospectus to each of you in such quantities as you may reasonably request; PROVIDED, HOWEVER, that should any such event relate solely to activities of you, then you shall assume the expense of preparing and furnishing any such amendment or supplement. If such amendment or supplement, and any documents, certificates and opinions furnished to each of you pursuant to paragraph (g) of this Section 4 in connection with the preparation of filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Dealer Manager Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(c) During the term of this Agreement, the Company will timely file all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, on the date on which the Company (or as soon as practicable thereafter) makes any announcement to the general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed pursuant to the Exchange Act, the Company will furnish to each of you the information contained in such announcement. The Company will notify each of you of any downgrading in the rating of the Notes or any other debt securities of the Company, or any public announcement of placement of the Notes or any other debt securities of the Company on what is commonly termed a "watch list" for possible downgrading, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), promptly after the Company learns of any such downgrading or public announcement.
(d) As soon as practicable, the Company will make generally available to its security holders and counsel for to each of you an earnings statement or statements of the Dealer Manager Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel, without charge in such quantities (except as otherwise provided herein), a reasonable number of copies of the Dealer Manager Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus may be required by the Act, as many copies of the Prospectus and any supplement thereto as you may reasonably request.
(ef) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, arrange for the qualification of the Registered ADSs Notes for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager any of you may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Notes, and upon your request will arrange for the determination of the legality of the Notes for purchase by institutional investors; provided PROVIDED, HOWEVER, that in no event the Company shall the Bank not be obligated required to qualify to do business in any jurisdiction in which it is not now so qualified as a foreign corporation or to take any action that would subject it file a general consent to service of process in suitsany jurisdiction, to pay filing fees and other than those arising out of expenses in connection therewith in the offering of the Registered ADSsaggregate exceeding $4,000, in or to comply with any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt other requirement reasonably deemed by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer Company to be cancelledunduly burdensome.
(g) The Bank will cooperate During the term of this Agreement, the Company shall furnish to each of you (i) copies of all annual, quarterly and other reports furnished to stockholders, (ii) copies of all annual, quarterly and current reports (without exhibits but including documents incorporated by reference therein) of the Company filed with the Dealer Manager Commission under the Exchange Act and use its commercially (iii) such other information concerning the Company as you may reasonably best efforts request from time to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companytime.
(h) The Bank agrees to pay Company shall, whether or cause to be paid not any sale of the costs and expenses relating to the following matters: Notes is consummated, (i) pay all expenses incident to the feesperformance of its obligations under this Agreement, including the fees and disbursements of its accountants and expenses counsel, the cost of the Bank’s counsel printing or other production and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission delivery of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and Prospectus, all amendments thereof and supplements thereto and thereto, the mailing and delivering (including postageIndenture, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and all other documents relating to the Registered Deposit Agreementoffering, the deposit cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel, incurred pursuant to Section 4(f), the fees and disbursements of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs Trustee and the fees of any ratings agency that rates the Registered DepositaryNotes, the Exchange Agent and(ii) reimburse each of you on a monthly basis for all reasonable out-of-pocket expenses incurred by you in connection with this Agreement (including, but not limited to, advertising expenses), in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates aggregate not to exceed $2,500 per Agent for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies term of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproducediii) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and pay the reasonable fees and expenses of your counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offerthis Agreement.
(i) The Bank Each acceptance by the Company of an offer to purchase Notes will comply with all applicable securities be deemed to be a new making to you of the representations and other laws, rules warranties of the Company in Section 1 (except that such representations and regulations, including, without limitation, warranties shall be deemed to relate solely to the Sarbanes Oxley Act, Registration Statement as then amended and use its best efforts to cause the Bank’s directors Prospectus as then amended and officers, in their capacities as such, supplemented to comply with relate to such laws, rules and regulationsNotes).
(j) The Bank willExcept as otherwise provided in subsection (n) of this Section 4, for a period of twelve months following each time that the Commencement Date, furnish to Registration Statement or the Dealer Manager all reports Prospectus is amended or supplemented (other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager than by (i) an amendment or supplement relating to any offering of Debt Securities other than the Notes or (ii) a Pricing Supplement) the Company will deliver or cause to be delivered promptly to each of you a certificate of the Company, signed by any of the Chairman of the Board, the President and Chief Executive Officer, any Vice President having responsibilities for financial matters or the Controller or the Treasurer of the Company, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form reasonably satisfactory to you, of the same tenor as soon as they are available, copies the certificate referred to in Section 5(d) but modified to relate to the last day of any reports and the fiscal quarter for which financial statements furnished to or of the Company were last filed or submitted with the Commission or any securities exchange on which any class of securities and to the Registration Statement and the Prospectus as amended and supplemented to the time of the Bank effectiveness of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this Section 4, each time that the Registration Statement or the Prospectus is listed and amended or supplemented (other than by (i) an amendment or supplement relating to any offering of Debt Securities other than the Notes or (ii) such additional information concerning a Pricing Supplement), the business and financial condition Company shall furnish or cause to be furnished promptly to each of you a written opinion of Xxxxx & Xxxxxx, counsel for the Company, satisfactory to each of you, dated the date of the Bank effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to each of you, of the same tenor as the Dealer Manager opinion referred to in Section 5(b), but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement or, in lieu of such opinion, such counsel may furnish each of you with a letter to the effect that you may rely on such counsel's last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion will be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of this Section 4, each time that the Registration Statement or the Prospectus is amended or supplemented (other than by (i) an amendment or supplement relating to any offering of Debt Securities other than the Notes or (ii) a Pricing Supplement) to set forth amended or supplemental financial information (derived from the accounting records of the Company subject to the internal controls of the Company's accounting system or derived directly from such records by computation), the Company shall cause its independent public accountants promptly to furnish each of you a letter, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to each of you, of the same tenor as the letter referred to in Section 5(e) with such changes as may be necessary to reflect the amended and supplemental financial information included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented to the date of such letter.
(m) During the period, if any, specified in any Terms Agreement, the Company shall not, without the prior consent of the Purchaser thereunder, issue or announce the proposed issuance of any of its debt securities, including the Notes, with maturities or other terms substantially similar to the Notes being purchased pursuant to such Terms Agreement.
(n) The Company shall not be required to comply with the provisions of subsections (j), (k) and (l) of this Section 4 during any period (which may occur from time to time reasonably request during the term of this Agreement) for which the Company has instructed the Agents to suspend the solicitation of offers to purchase Notes; PROVIDED that, during any such period, any Purchaser does not then hold any Notes purchased pursuant to a Terms Agreement. Whenever the Company has instructed the Agents to suspend the solicitation of offers to purchase Notes for any such period, however, prior to instructing the Agents to resume the solicitation of offers to purchase Notes or prior to entering into any Terms Agreement, the Company shall be required to comply with the provisions of subsections (such statements to be on a consolidated basis j), (k) and (l) of this Section 4, but only to the extent of delivering or causing to be delivered the accounts most recent certificate, opinion or letter, as the case may be, which would have otherwise been required under each such subsection unless the Agents otherwise reasonably request that such documents in respect of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)prior periods be delivered.
Appears in 1 contract
Samples: Distribution Agreement (Central Hudson Gas & Electric Corp)
Agreements. (a) The Bank Company agrees with the Dealer Manager Underwriter that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank will use its best efforts Prior to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to Shares (the Exchange Offer, “Prospectus Delivery Period”) the Bank Company will not file (x) any amendment to of the Registration Statement Statement, the Time of Sale Disclosure Package or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Issuer Free Writing Prospectus unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank The Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Underwriter with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to you the Underwriter of such timely filing. The Bank Company will promptly advise you (i) the Underwriter when the Registration Statement Time of Sale Disclosure Package, any Issuer Free Writing Prospectus and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii3) when, prior to termination the end of the offering of the Registered ADSs pursuant to the Exchange OfferProspectus Delivery Period, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR Registration Statement or for any supplement to the Exchange Offer Prospectus, any Issuer Free Writing Prospectus or the Time of Sale Disclosure Package or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Shares for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without chargeIf, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement DateProspectus Delivery Period, any event occurs as a result of which the Exchange Offer ProspectusTime of Sale Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, as then in the light of the circumstances under which they were made, not misleading, the Company will (1) notify the Underwriter so that any use of the Time of Sale Disclosure Package may cease until it is amended or supplemented; (2) amend or supplement the Time of Sale Disclosure Package to correct such statement or omission; and (3) supply any amendment or supplement to the Underwriter in such quantities as the Underwriter may reasonably request.
(iii) If, during the Prospectus Delivery Period, any event occurs as a result of which the Prospectus as then supplemented would include contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Securities Act, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Underwriter of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia)(i) of this sentence; (ii) prepare Section 6, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge Underwriter in such quantities as the Dealer Manager Underwriter may reasonably request.
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Underwriter an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Securities Act.
(v) The Bank Company will furnish to the Underwriter and its counsel signed copies of the Registration Statement (including exhibits thereto) and, until the end of the Prospectus Delivery Period, as many copies of the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus and any supplement thereto as the Underwriter may reasonably request.
(vi) The Company will not, without the prior written consent of the Underwriter, for a period of 60 days after the date of this Agreement (the “Lock-Up Period”) offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company), 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 and the rules and regulations of the Commission promulgated thereunder with respect to, any shares of Common Stock, preferred stock, or other capital stock (collectively, “Capital Stock”) or any securities convertible into, or exercisable or exchangeable for such Capital Stock, or publicly announce an intention to effect any such transaction, provided, however, that the Company (a) may issue and sell Common Stock pursuant to any employee stock option plan or stock ownership plan (including upon the exercise or conversion of any securities issued pursuant to any employee stock option plan or stock ownership plan), dividend reinvestment plan of the Company in effect at the date of this Agreement or to any employee or director of the Company (or its subsidiaries) provided that such issuance is approved by the compensation committee of the Company’s board of directors, (b) may issue Common Stock issuable upon conversion of securities or the exercise of warrants outstanding at the date hereof and (c) may issue up to $100 million of Common Stock or any security convertible into, or exercisable or exchangeable for Common Stock, solely for the purpose of completing an acquisition.
(vii) The Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its best efforts to cause the Company’s directors and officers, in cooperation their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the Dealer Manager to arrange, if necessary, for the qualification provisions of the Registered ADSs Sxxxxxxx-Xxxxx Act.
(viii) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(ix) The Company will qualify the Shares for offer by the Dealer Manager and sale under the securities or blue sky laws of such jurisdictions as the Dealer Manager may designate Underwriter shall reasonably request and will maintain to continue such qualifications qualification in effect so long as reasonably required for such offerdistribution of the Shares; provided that in no event the Company shall the Bank not be obligated required to qualify to do business in any jurisdiction in which it is not now so qualified as a foreign corporation or to take any action that would subject it file a general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposejurisdiction.
(fx) The Bank will notCompany represents and agrees that, unless it obtains the prior written consent of the Underwriter, and the Underwriter represents and agrees that, unless it obtains the prior written consent of the Company, it has not made and will not permit make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus, required to be filed with the Commission; provided that the prior written consent of its Affiliates to, resell any Registered ADSs that the parties hereto shall be deemed to have been acquired given in respect of the Issuer Free Writing Prospectuses included in Schedule I hereto. Any such free writing prospectus consented to by them. the Company and the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Bank Company represents that it has treated or agrees that it will cause all Rule 144A ADSs accepted in treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the Exchange Offer requirements of Rules 164 and 433 applicable to be cancelledany Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(gxi) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), the ADR Registration Statement and Prospectus, the Exchange Offer Time of Sale Disclosure Package, any Issuer Free Writing Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) each amendment or supplement to any of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offerthem; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus, the Time of Sale Disclosure Package, any Issuer Free Writing Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Shares; (v) the registration of the Shares under the Exchange Act and the listing of the Shares on the Nasdaq Global Select Market; (vi) any registration or qualification of the Registered ADSs Shares for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriter or the Selling Stockholder relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferShares; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and the reasonable fees and expenses of counsel for the Selling Stockholder; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder; and in connection (xi) all other reasonable costs and expenses incident to the performance by the Selling Stockholder of its obligations hereunder.
(b) The Selling Stockholder agrees with the Exchange Offer.Underwriter that:
(i) The Bank Selling Stockholder will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of the Underwriter, during the Sarbanes Oxley ActLock-Up Period offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder), directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, other than (i) common stock disposed of as bona fide gifts approved by the Underwriter, (ii) Common Stock purchased in the open market after the date of this Agreement and use its best efforts (iii) to cause the Bank’s directors and officers, in their capacities as such, Underwriter pursuant to comply with such laws, rules and regulationsthis Agreement.
(jii) The Bank willSelling Stockholder has not taken and will not take, for a period directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of twelve months following the Commencement Date, furnish price of any security of the Company to facilitate the Dealer Manager all reports sale or other communications resale of the Shares.
(financial or otheriii) generally made available to stockholdersThe Selling Stockholder will advise you promptly, and deliver to if requested by you, will confirm such advice in writing, during the Dealer Manager Prospectus Delivery Period, of (i) as soon as they are availableany change in information in the Registration Statement, copies the Time of any reports and financial statements furnished Sale Disclosure Package or the Prospectus relating to the Selling Stockholder or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional any new material information concerning relating to the business Company or relating to any matter stated in the Time of Sale Disclosure Package and financial condition the Prospectus which comes to the attention of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Selling Stockholder.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following The Company will use its reasonable best efforts to cause the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, if not effective at the Bank will use its best efforts to maintain the effectiveness of the Registration Statement Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period therein prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank and Company, its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its reasonable best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise subject or take any action which would subject the Dealer Manager of the receipt by the Bank of any notification with respect Company to the suspension of the qualification of the Registered ADSs for sale taxation in any jurisdiction or the initiation or threatening of any proceeding for such purposewhere it is not already subject to taxation.
(f) The Bank Company will not, without the prior written consent of Salomon Smith Barney Inc. and will not permit Morgan Stanley & Co. Incorporated, xxxxx, xxlx, xxntract to xxxx, plxxxx, xr otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Carolina Group Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Carolina Group Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, that the Company may issue options and sell Carolina Group Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time or as described in the Prospectus.
(g) The Bank Expect as disclosed in the Prospectus, the Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or (including filing fees and the reasonable fees and expenses of counsel, up to $5,000, for the Underwriters relating to such registration and qualification); (vii) any non-U.S. jurisdiction filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualificationfilings); (viviii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Loews Corp)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its the Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, or xxxxxwxxx xxspose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(hii) The Bank Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of Salomon Smith Barney, offer, sell, contract to pay sell, pledge ox xxxxxxxxx xispose of, (or cause 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 be paid cash settlement or otherwise) by the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses Company or any affiliate of the Bank’s counsel and accountants Company or any person in connection privity with the registration Company or any affiliate of the Registered ADSs under Company) directly or indirectly, or file (or participate in the Act and all other expenses in connection with the preparation, printing and 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 the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation Section 16 of the Exchange Offer; (ii) the preparation Act with respect to, any shares of this Agreement and the Registered Deposit Agreement, the deposit capital stock of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states Company or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel securities convertible into or exercisable or exchangeable for the Dealer Manager relating such capital stock, or publicly announce an intention to effect any such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 90 days after the Commencement Datedate of this Agreement, furnish other than shares of Common Stock disposed of as bona fide gifts approved by Salomon Smith Barney Inc.
(b) Such Selling Xxxxxxxxxxx wxxx xxt take any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change in the Company's condition (financial or other) generally made available to stockholdersotherwise), and deliver to the Dealer Manager (i) as soon as they are availableprospects, copies of any reports and financial statements furnished to earnings, business or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and properties, (ii) any change in information in the Registration Statement or the Prospectus relating to such additional Selling Stockholder or (iii) any new material information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis relating to the extent Company or relating to any matter stated in the accounts Prospectus which comes to the attention of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)such Selling Stockholder.
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (viiix) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholders of its their obligations hereunder and in connection with the Exchange Offerhereunder.
(iii) The Bank Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of Xxxxxxx Xxxxx Barney, 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 Sarbanes Oxley Actdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, and use its best efforts or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to cause the Bank’s directors and officers, in their capacities as such, to comply with effect any such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 90 days after the Commencement Datedate of this Agreement, furnish except for bona fide gifts or transfers effected other than on any securities exchange or in the over-the-counter market to donees or transferees that agree in writing to be bound by the restrictions contained herein.
(b) Such Selling Stockholder will not take any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change in the Company's condition (financial or other) generally made available to stockholdersotherwise), and deliver to the Dealer Manager (i) as soon as they are availableprospects, copies of any reports and financial statements furnished to earnings, business or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and properties, (ii) any change in information in the Registration Statement or the Prospectus relating to such additional Selling Stockholder or (iii) any new material information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis relating to the extent Company or relating to any matter stated in the accounts Prospectus which comes to the attention of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)such Selling Stockholder.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Managers that:
(a) Following During any period when a prospectus relating to the declaration of effectiveness of each Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will not file any amendment of the Registration Statement and or supplement (including the ADR Registration Statement, the Bank will use its best efforts to maintain the effectiveness of the Registration Statement and the ADR Registration Statement, to cause Final Prospectus or any amendment thereof to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant Preliminary Prospectus) to the Exchange Offer, the Bank will not file Base Prospectus (x) any amendment to unless the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing Company has furnished you with a copy of such proposed amendment or supplementsupplement for your review prior to filing and (y) will not file any such proposed amendment or supplement to which you reasonably object, (except, in the case of subclause (y), for (i) an amendment or supplement consisting solely of the filing of a document required to be filed under the Exchange Act or (ii) a supplement relating to any offering of securities other than the Securities, subject to Section 5(i)). Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filingprescribed. The Bank Company will promptly advise you the Representative (i) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iiiii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iviii) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (viv) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement of any notice objecting to its use or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (viv) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal thereofof such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Bank will furnish to To prepare a final term sheet, containing solely a description of final terms of the Dealer Manager Securities and the offering thereof, in the form approved by you and attached as Schedule IV hereto and to counsel for file such term sheet pursuant to Rule 433(d) within the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in time required by such quantities as the Dealer Manager may reasonably requestRule.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Datefiling of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it should shall be necessary to amend or supplement the Registration Statement, file a new registration statement or supplement the ADR Registration Statement or the Exchange Offer Final Prospectus to comply with applicable lawthe Act or the Exchange Act, including in connection with the use or delivery of the Final Prospectus, the Bank Company promptly will promptly: (i) notify the Dealer Manager Representative of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; event, (ii) prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement that or new registration statement which will correct such statement or omission or effect such compliance; and , (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in the use of the Final Prospectus and (iv) supply any such amendment supplemented or supplement amended Final Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Bank Company will use its best efforts furnish to the Representative and counsel for the Managers, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Manager a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Manager or dealer may be required by the Act (including in cooperation with circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Dealer Manager to Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representative may reasonably request.
(g) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate reasonably request and will maintain such qualifications in effect so long as reasonably required for the distribution of the Securities and, subject to the proviso in Section 5(k), will pay all fees and expenses (including fees and disbursements of counsel to the Managers) in connection with such offerqualification and in connection with the determination of the eligibility of the Securities for investment under the laws of such jurisdictions as the Representative may designate; provided that in no event shall the Bank Company be obligated (i) to qualify to do business in any jurisdiction in which where it is not now so qualified or qualified, (ii) to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect subject or (iii) to the suspension of the qualification of the Registered ADSs for sale subject itself to taxation in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will if it is not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companynow otherwise so subject.
(h) The Bank Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Manager, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such Free Writing Prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representative, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company with a maturity of more than one year or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Final Prospectus and amendments each Issuer Free Writing Prospectus, and supplements thereto each amendment or supplement to any of them; (ii) the printing (or reproduction) and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Managers relating to such registration and qualification); (vivii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiviii) the fees and expenses incurred in connection with of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) all fees and expenses related to listing the Registered ADSs Securities on the New York Stock ExchangeTPEx; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder. It is understood, however, that except as provided in this Section and Sections 7 and 9 hereof, the Managers will pay all of their own costs and expenses, including the fees and disbursements of their counsel, any stamp duty that may be imposed on this Agreement under the ROC Stamp Tax Act, if being executed in the ROC, and any advertising expenses connected with any offers they may make.
(l) The Company will assist the Representative in arranging for the Securities to be eligible for clearance and settlement through Clearstream and Euroclear.
(m) The Company will use its commercially reasonable efforts to have the Securities listed on the TPEx.
(n) In connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities application to the TPEx for the listing of, and other laws, rules and regulations, including, without limitationpermission to deal in, the Sarbanes Oxley ActSecurities, and the Company agrees that it will use its best commercially reasonable efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time any and all documents, instruments, information and undertakings and publish all advertisements or other material that may be necessary in order to effect such listing and will maintain such listing until none of the Securities is outstanding or until such time as payment of principal, premium, if any, and interest in respect of the Securities has been duly provided for, whichever is earlier; provided, however, that if the Company can no longer reasonably request (maintain such listing, including, but not limited to, in circumstances where obtaining or the maintenance of such listing would require preparation of financial statements to be on in accordance with accounting standards other than U.S. GAAP in a consolidated basis manner that, in the Company’s judgment, is burdensome, or such listing is otherwise, in the Company’s judgment, burdensome, it will consider obtaining and maintaining the quotation for, or listing of, the Securities by such other listing authority, stock exchange and/or quotation system as the Managers shall reasonably request. However, if such an alternative listing is not available to the extent Company or is, in the accounts Company’s judgment, burdensome, an alternative listing for the Securities need not be considered by the Company. In addition, for so long as the Securities are admitted to listing, trading and/or quotation by a listing authority, stock exchange and/or quotation system, and such listing authority, stock exchange and/or quotation system requires the existence of a paying agent in a particular location, the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Company will maintain a paying agent as required.
Appears in 1 contract
Samples: Subscription Agreement (Intel Corp)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of [Name of lead Representative], offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company, directly or indirectly, or announce the offering of, any long-term debt securities issued or guaranteed by the Company or preferred stock (other than the Securities), until the Business Day set forth on Schedule I hereto.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses issuance of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with Securities; (ii) the preparation, printing and filing with the Commission or reproduction of the Registration Statement, the ADR Registration Statement and the Exchange Offer Preliminary Final Prospectus and amendments Final Prospectus and supplements thereto each amendment or supplement to either of them; (iii) the printing (or reproduction) and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Preliminary Final Prospectus and Final Prospectus, and all amendments or supplements to the Dealer Managereither of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange OfferSecurities; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iiiiv) 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; (ivv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (vvi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiviii) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and counsel (including local and special counsel); (ix) the New York Stock Exchange; fees and expenses of any rating agencies rating the Securities and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives a copy for their review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplementwhich they reasonably object. Subject to the foregoing sentence, if the Registration Statement has become effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you advise, or has advised, the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become became effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act (or with respect to information incorporated therein by reference, the Exchange Act) or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as reasonably practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings earning statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all such documents.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and reasonably designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Citigroup Global Markets Inc. and will not permit Banc of America Securities LLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition of (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the Company may issue stock options and issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, Act and shall use its best efforts to cause the BankCompany’s directors and officers, in their capacities as such, to comply with such securities laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act. The Company will comply with all other laws, rules and regulations and shall use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, except, with respect to laws, rules and regulations other than securities laws, rules and regulations and the Sarbanes Oxley Act, to the extent noncompliance with such laws, rules and regulations would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries considered as a whole.
(jh) The Bank willCompany will not take, for a period 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 twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies price of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities security of the Bank is listed and (ii) such additional information concerning Company to facilitate the business and financial condition sale or resale of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Securities.
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented or amended would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement or amend the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented or amended Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement or amendment thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period to, but excluding, November 13, 2002, provided, however, that the Company may (1) file a registration statement on form S-8 or an amendment to such a registration statement; (2) issue and sell Common Stock pursuant to any employee stock option plan or agreement, stock ownership plan or agreement, dividend reinvestment plan or employee stock purchase plan of the Company in effect at the Execution Time and (3) issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause the costs and expenses set forth in Section 5(ii)(d) hereof on written demand of the Underwriters to the extent the Selling Stockholders fail to satisfy their obligations thereunder. If the Company is required to make any payments under this Section 5(ii)(h), the Selling Stockholders pro rata in proportion to the percentage of securities to be paid sold by each shall reimburse the Company on demand for all amounts so paid.
(ii) Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of Xxxxxxx Xxxxx Barney Inc., offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder) directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period to, but excluding, November 13, 2002. The preceding sentence shall not apply (i) to the sale of shares of Securities to the Underwriters hereunder, (ii) to transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the public offering of the Securities, (iii) as may otherwise be agreed to in writing by Xxxxxxx Xxxxx Xxxxxx Inc. in such Selling Stockholder's lock-up agreement, (iv) to transfers of shares of Common Stock or any security convertible into Common Stock as a bona fide gift or gifts, and (v) to distributions of shares of Common Stock or any security convertible into Common Stock to limited partners, members, affiliates or stockholders of such Selling Stockholder; provided that in the case of any transfer or distribution pursuant to clause (iv) or (v), (y) each donee or distributee shall execute and deliver to Xxxxxxx Xxxxx Barney Inc. an agreement to be bound to the restrictions set forth in the preceding sentence (dated and effective as of the date hereof) and (z) no filing by any party (donor, donee, transferor or transferee) under Section 16(a) of the Exchange Act shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the period referred to above). In addition, the undersigned agrees that, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., it will not, during the period to, but excluding, November 13, 2002 make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. Such Selling Stockholder also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent and registrar against the transfer of such Selling Stockholder's share of Common Stock except in compliance with the foregoing restrictions.
(b) Such Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of (i) any change in information in the Registration Statement or the Prospectus relating to such Selling Stockholder and (ii) if such person is a Company Selling Stockholder, any material change in the Company's condition (financial or otherwise), prospects, earnings, business or properties and any new material information relating to the Company or relating to any matter stated in the Prospectus which comes to the attention of such Company Selling Stockholder.
(d) The Selling Stockholders (in proportion to the number of Securities being offered by each of them, including any Option Securities which the Underwriters shall have elected to purchase) agree to pay the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and initial sale of the SecuritiesSecurities to the Underwriters hereunder; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders incurred in connection with listing the Registered ADSs on transactions contemplated hereby; (x) the New York Stock Exchange; fees and expenses of the Custodian relating to the performance by the Custodian of its obligations under the Custody Agreements and (viiixi) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholders of its their obligations hereunder and in connection with the Exchange Offerhereunder.
(ie) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish With respect to the Dealer Manager all reports or other communications (financial or other) generally made available lock-up letter agreements delivered by the Selling Stockholders to stockholdersXxxxxxx Xxxxx Barney Inc. as representative of the underwriters for the Company's initial public offering which closed on February 21, and deliver 2002, Xxxxxxx Xxxxx Xxxxxx Inc. hereby consents to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities sale by such Selling Stockholders of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements Securities to be on a consolidated basis sold pursuant to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Paypal Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain the effectiveness of cause any amendment to the Registration Statement and the ADR Registration Statement, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii2) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv3) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v4) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi5) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a of the Exchange Offer Act, any debt securities issued or guaranteed by the Company with a maturity in excess of one year (other than the Securities) or publicly announce an intention to be cancelledeffect any such transaction, until the Closing Date.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereto, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission Commission, or transmitted by a means reasonably calculated to result in filing with the Commission, pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative (i1) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, ; (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), ) or when any Rule 462(b) Registration Statement shall have been filed with the Commission; (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, ; (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, ; (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such that purpose, ; and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act in connection with the offering of the Securities, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representative of any such event or non-compliance at which time event; (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiii)(a) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; and (iii3) supply any supplemented Prospectus to you in such amendment or supplement quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Dealer Manager Representative an earnings statement or statements of the Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto and documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representative may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative reasonably may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Deutsche Banc Alex. Bxxxx Inc., for a period of 45 days following the Execution Time, offer, sell or contract to sell or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, or announce the offering of, or file a Registration Statement with the Commission in respect of, any other shares of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock; provided, however, that the Company may file one or more registration statements on Form S-8 and may issue and sell Common Stock or make any awards pursuant to any employee stock option plan, stock ownership or purchase plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and the Company may issue shares of Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Common Stock in connection with an acquisition of or merger with another corporation or the acquisition of assets or properties thereof, provided, that the holders of any such securities shall be cancelledsubject to the transfer restrictions set forth in Section 5(ii)(a) hereof.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(hii) The Bank Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of Deutsche Banc Alex. Bxxxx Inc., offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file (or participate 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 with respect to, any shares of Common Stock of the Company or any securities convertible into or exercisable or exchangeable for such Common Stock, or publicly announce an intention to effect any such transaction, for a period of 45 days after the date of this Underwriting Agreement, other than sales, transfers or other distributions in transactions that are not required to be registered under the Act, including charitable contributions, gifts and sales to third parties, provided that the transferee agrees to be bound by a restriction on further transfers substantially similar to the restriction set forth in this Section 5(ii)(a).
(b) Such Selling Stockholder will not take any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement or the Prospectus relating to the Selling Stockholder.
(d) Such Seller Stockholder will pay or cause to be paid the costs and expenses relating to the following matters: matters in the same proportion as the number of Securities sold by such Selling Stockholder bears to the total number of Securities sold by all of the Selling Stockholders:
(i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, postage and air freight charges and charges for counting and packagingcharges) of such copies thereof of the Registration Statement, Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and of the Exercise Shares or the sale of the SecuritiesSecurities by the Selling Stockholders; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum Underwriting Agreement and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the blue sky securities laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (viiix) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholders of its their obligations hereunder and in connection with the Exchange Offerunder this Underwriting Agreement.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Corporate Executive Board Co)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (iieffective,(2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) or when any Rule 462(b) Registration Statement shall have been filed with the Commission,(3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iveffective,(4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (vinformation,(5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if, in the reasonable discretion of the Company, it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank and its Subsidiaries Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, PROVIDED, HOWEVER, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses in stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Biocryst Pharmaceuticals Inc)
Agreements. (i) The Bank Company agrees with the Dealer Manager several U.S. ----------- Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain the effectiveness of cause the Registration Statement Statements, if not effective at the Execution Time, and the ADR Registration Statementany amendment thereof, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement Statements or the ADR Registration Statement or (y) any supplement to the Exchange Offer Basic Prospectus without first providing or any Rule 462(b) Registration Statements unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statements have become or become effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus Final Prospectuses is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer ProspectusFinal Prospectuses, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the U.S. Representatives of such timely filing. The Bank Company will promptly advise you the U.S. Representatives (i1) when the Registration Statement and Statements, if not effective at the ADR Registration Statement, and any amendment theretoExecution Time, shall have become effective, (ii2) when the Exchange Offer ProspectusFinal Prospectuses, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statements shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement Statements shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statements, or the ADR any Rule 462(b) Registration Statement Statements, or for any supplement to the Exchange Offer Prospectus Final Prospectuses or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement Statements or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Securities Act, any event occurs as a result of which either of the Exchange Offer Prospectus, Final Prospectuses as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statements or supplement either of the Registration Statement, Final Prospectuses to comply with the ADR Registration Statement Securities Act or the Exchange Offer Prospectus to comply with applicable lawAct or the respective rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager U.S. Representatives of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiii)(a) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii3) supply any such amendment or supplement supplemented Final Prospectuses to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(d) The Company will furnish to the U.S. Representatives and counsel for the U.S. Underwriters, without charge, a conformed copy of the Registration Statements (including exhibits thereto) and to each other U.S. Underwriter a copy of the Registration Statements (without exhibits thereto) and, so long as delivery of a prospectus by U.S. Underwriter or dealer may be required by the Securities Act, as many copies of the U.S. Preliminary Prospectus and the U.S. Final Prospectus and any supplement thereto as the U.S. Representatives may reasonably request. The Company will pay the expenses of printing or other production of all such documents.
(e) The Bank Company will use its best efforts in cooperation cooperate with the Dealer Manager to arrangeRepresentatives in arranging, if necessaryat the Company's cost, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager U.S. Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe sale of the U.S. Securities; provided provided, however, that in no event connection therewith the Company shall the Bank not be obligated required to qualify to do business in any jurisdiction in which it is not now so qualified as a foreign corporation or to take any action that would subject it execute a general consent to service of process in suits, other than those arising out any jurisdiction or subject itself to taxation in excess of the offering of the Registered ADSs, a nominal dollar amount in any such jurisdiction in which where it is not now so then subject. The Bank Company promptly will promptly advise the Dealer Manager U.S. Representatives of the receipt by the Bank it of any notification with respect to the suspension of the qualification of the Registered ADSs U.S. Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, issue, announce the offering or issuance of or otherwise dispose of, directly or indirectly, register, cause to be registered or announce the registration or intended registration of, in any case for its own account, any shares of Common Stock, including any such shares beneficially or indirectly owned or controlled by the Company, or any securities convertible into or exchangeable for Common Stock, for a period of 90 days from the date of the International Final Prospectus, except for: (A) up to 3,000,000 shares of Common Stock in the aggregate issued in connection with acquisitions (including by consolidation, merger or similar transaction and will not permit including acquisitions of shares of any of its Affiliates tosubsidiaries held by minority shareholders), resell any Registered ADSs provided that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in more than 3,000,000 such shares may be issued to the Exchange Offer extent the purchaser or purchasers of such excess shares agree to be cancelledbound by the provisions of this paragraph for any remaining portion of such 90-day period, (B) Common Stock issued pursuant to any employee benefit plan, stock ownership or stock option plan or dividend reinvestment plan in effect on the Execution Date or options granted pursuant to any such plan in effect on the Execution Date, provided that such options cannot be exercised for any remaining portion of such 90-day period, (C) Common Stock issued in connection with the inclusion of the Common Stock in any Major Market Index, (D) maintaining the effectiveness of any registration statement in place on the Execution Date or otherwise permitted to be filed under this paragraph, (E) Common Stock issued in connection with the exercise of any warrants outstanding on the Execution Date, (F) Common Stock issued to prospective employees in connection with such employees being hired by the Company, (G) the Securities, the Convertible Notes issuable under the Underwriting Agreement, dated February 23, 2000, among the Company and the representatives of the underwriters listed therein, the Common Stock issuable upon conversion of such Convertible Notes and upon conversion of the Company's existing 6% Convertible Subordinated Notes due 2009 and (H) the filing, announcing or amending of a shelf registration for up to $5 billion of securities, provided, however, that this clause (H) shall not permit the actual offering, or "take down" of any such securities during such 90-day period.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company will apply the net proceeds from the sale of the Securities sold by it substantially in accordance with its statements under the caption "Use of Proceeds" in the Final Prospectuses.
(ii) Each U.S. Underwriter agrees to pay or cause to be paid the costs and expenses relating to the following matters: that (i) the fees, disbursements and expenses it is not purchasing any of the Bank’s counsel and accountants in connection with U.S. Securities for the registration account of the Registered ADSs under the Act and all anyone other expenses in connection with the preparationthan a United States or Canadian Person, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement it has not offered or sold, and the Registered Deposit Agreementwill not offer or sell, the deposit directly or indirectly, any of the Registered ADSs under U.S. Securities or distribute any U.S. Final Prospectus to any person outside the Registered Deposit AgreementUnited States or Canada, the issuance of the ADSs representing such deposited sharesor to anyone other than a United States or Canadian Person, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) any dealer to whom it may sell any of the preparationU.S. Securities will represent that it is not purchasing for the account of anyone other than a United States or Canadian Person and agree that it will not offer or resell, printingdirectly or indirectly, authenticationany of the U.S. Securities outside the United States or Canada, issuance or to anyone other than a United States or Canadian Person or to any other dealer who does not so represent and delivery agree; provided, however, that the foregoing shall not restrict (A) purchases and sales between the International Underwriters on the one hand and the U.S. Underwriters on the other hand pursuant to the Agreement Between U.S. Underwriters and International Underwriters, (B) stabilization transactions contemplated under the Agreement Between U.S. Underwriters and International Underwriters, conducted through Xxxxxxx Xxxxx Barney Inc. (or through the U.S. Representatives and International Representatives) as part of certificates for the distribution of the Securities, including any stamp and (C) sales to or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing through (or reproductiondistributions of U.S. Final Prospectuses or U.S. Preliminary Prospectuses to) United States or Canadian Persons who are investment advisors, or who otherwise exercise investment discretion, and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel who are purchasing for the Dealer Manager relating to such registration and qualification); (vi) transportation and account of anyone other expenses incurred by than a United States or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange OfferCanadian Person.
(iiii) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, agreements of the Sarbanes Oxley Act, and use its best efforts to cause U.S. Underwriters set forth in paragraph (ii) of this Section 5 shall terminate upon the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.earlier of the following events:
(ja) The Bank will, for a mutual agreement of the U.S. Representatives and the International Representatives to terminate the selling restrictions set forth in paragraph (ii) of this Section 5 and in Section 5(ii) of the International Underwriting Agreement; or
(b) the expiration of a period of twelve months following 30 days after the Commencement Closing Date, furnish unless (A) the U.S. Representatives shall have given notice to the Dealer Manager all reports Company and the International Representatives that the distribution of the U.S. Securities by the U.S. Underwriters has not yet been completed, or other communications (financial or otherB) generally made available to stockholders, and deliver the International Representatives shall have given notice to the Dealer Manager (i) as soon as they are available, copies of any reports Company and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities U.S. Representatives that the distribution of the Bank International Securities by the International Underwriters has not yet been completed. If such notice by the U.S. Representatives or the International Representatives is listed and given, the agreements set forth in such paragraph (ii) shall survive until the earlier of (1) the event referred to in clause (a) of this subsection (iii) or (2) the expiration of an additional period of 30 days from the date of any such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)notice.
Appears in 1 contract
Samples: u.s. Underwriting Agreement (Level 3 Communications Inc)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with 5 5 the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities, and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Until the Business Day set forth on Schedule I hereto, the Company will not, and will not permit without the prior written consent of the Representatives, offer, sell or contract to sell, or otherwise dispose of (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelledcash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company directly or indirectly, or announce the offering of, any debt securities issued or guaranteed by the Company (other than the Securities).
(g) The Bank will cooperate with under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses Each Subsidiary of the Bank’s counsel and accountants in connection with Company that is a national banking association holds a valid Certificate of Authority from the registration Comptroller of the Registered ADSs Currency of the United States of America (the "Comptroller") to do business as a national banking association under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees United States and is not in arrears with respect to reports required to be filed with the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock ExchangeComptroller; and (viii) all each other costs bank Subsidiary of the Company has been duly organized and expenses incident to is validly existing as a bank in good standing under the performance by the Bank laws of its obligations hereunder jurisdiction of organization and is not in connection arrears with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts respect to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements required to be on a consolidated basis to the extent the accounts of the Bank filed with applicable state and its subsidiaries are consolidated in reports furnished to stockholders)Federal bank regulators.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager without charge in such quantities Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank During the period from the date of this agreement through the five year anniversary hereof, the Company will use furnish upon request to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its best efforts in cooperation annual report to stockholders for such year; and the Company will furnish upon request to the Representatives as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Dealer Manager Commission under the Exchange Act or mailed to stockholders.
(f) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided provided, however, that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fg) The Bank For a period of 9 months after the date of the Prospectus, the Company will not, and will not permit any the Operating Partnership to offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement (except a registration statement on Form S-8 relating to the restricted share awards or its 2004 equity incentive award plan or a registration statement on Form S-4 relating to the Company’s acquisition of its Affiliates another entity) under the Act relating to, resell any Registered ADSs additional shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, including, without limitation, OP Units, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives, other than grants of stock options, PIUs, RSUs or restricted stock to employees, consultants or directors pursuant to the terms of a plan in effect as of the date of the Prospectus, issuances of Common Stock in connection with redemptions of any OP Units and pursuant to a dividend reinvestment plan (if any), issuances of Common Stock, OP Units or other securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of interests in real property, real property companies or entities owning interests in real property. In the event that have been acquired by them. The Bank either (x) during the last 17 days of the 9-month period referred to above, the Company issues an earnings release or (y) prior to the expiration of such 9-month period, the Company announces that it will cause all Rule 144A ADSs accepted in release earnings results during the Exchange Offer 17-day period beginning on the last day of such 9-month period, the restrictions described above shall continue to be cancelled.
(g) The Bank will cooperate with apply until the Dealer Manager and use its commercially reasonably best efforts to permit expiration of the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company17-day period beginning on the date of the earnings release.
(h) The Bank Company will use its reasonable best efforts to meet the requirements to qualify, for the taxable year ending December 31, 2004, for taxation as a REIT under the Code.
(i) The Company will use its best efforts to effect the initial listing of the Common Stock (including the Securities) on the NYSE.
(j) The Company will use its commercially reasonable efforts to complete the construction of its University Village at Fresno, University Village at San Bernardino and University Village at Temple University properties in accordance with the description set forth in the Prospectus.
(k) The Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and will use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply in all material respects with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act.
(l) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(m) The Company will take such steps as shall be necessary to ensure that neither Transaction Entity shall become an “investment company” within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(n) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on NYSE; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the NASD (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred of the Company’s accountants, counsel (including local and special counsel) and transfer agent and registrar; (x) any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with listing attending or hosting meetings with prospective purchasers of the Registered ADSs on the New York Stock ExchangeSecurities; and (viiixi) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder hereunder.
(o) Pursuant to a letter agreement, dated May 13, 2004 (the “Engagement Letter”), among the Company, RAP Student Housing Properties, LLC, RSVP Student Housing, LLC, Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. (the “Advisors”), the Company shall pay to the Advisors the financial advisory fee required under such agreement as and when such financial advisory fee is required to be paid by the Company pursuant to the terms of such Engagement Letter.
(p) The Company shall pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Exchange OfferDirected Share Program, including the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Directed Share Program material and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(iq) The Bank During the period when the Prospectus is required to be delivered by the Underwriters under the Act or the Exchange Act, the Company will (1) comply with all provisions of the Act and (2) file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act. Furthermore, the Company covenants with the Representatives that the Company will comply in all material respects with all applicable U.S. securities and other applicable laws, rules and regulations, including, without limitation, regulations in each jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, Directed Shares are offered in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted connection with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (American Campus Communities Inc)
Agreements. The Bank agrees Company and the Guarantors agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each Each of the Registration Statement Company, ATC and the ADR Registration Statement, the Bank WCI will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereto, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to Securities, none of the Exchange OfferCompany, the Bank ATC and WCI will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company or a Guarantor has furnished you a copy for your review prior to filing or will file any such proposed amendment or supplement to which you reasonably object on a timely basis (other than filings of periodic reports pursuant to Section 13(a) under the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplementAct). Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantors will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company, ATC and WCI will promptly advise you the Representatives (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offereach series of Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of to the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional informationinformation relating to the offering of the Securities, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company, ATC or WCI of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Each of the Company, ATC and WCI will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company and any amendments the Guarantors promptly will prepare and supplements thereto in file with the Commission, subject to the second sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such quantities as the Dealer Manager may reasonably requeststatement or omission or effect such compliance.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company and the Guarantors will make generally available to their respective security holders and to the Representatives an earnings statement or statements of each of the Bank Company, ATC and its Subsidiaries WCI and their respective subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior If and to the Settlement extent specified in Schedule I, each of the Company, ATC and WCI will use its reasonable best efforts to cause the Securities to be duly authorized for listing on the New York Stock Exchange and to be registered under the Exchange Act.
(e) For a period of three years after the Closing Date, any event occurs the Company will furnish to you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as a result may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to its public stockholders generally.
(f) The proceeds of which the Exchange Offer Prospectus, offering of the Securities will be applied as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, set forth in the light of the circumstances under which they were madeFinal Prospectus.
(g) The Company, not misleading, ATC or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank WCI will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement furnish to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(eh) The Bank Company and the Guarantors will use its best efforts pay and bear all costs and expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits), as originally filed and as amended, any preliminary prospectus supplements and the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof to the Underwriters, (ii) the preparation, printing and distribution of this Agreement, the Indenture, the Securities, any Delayed Delivery Contracts, and the blue sky survey, (iii) the delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company's and the Guarantors' counsel and the accountants required hereby to provide "comfort letters", (v) the qualification of the Securities under the applicable securities laws in cooperation accordance with Section 4(i) and any filing for review of the offering with the Dealer Manager to arrangeNational Association of Securities Dealers, if necessaryInc., including filing fees and fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the blue sky survey, (vi) any fees charged by rating agencies for rating the Securities, (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Securities, (viii) any expenses and listing fees in connection with the listing of the Securities, (ix) the cost and charges of any transfer agent or registrar and (x) the costs of qualifying the Securities with The Depository Trust Company.
(i) The Company and the Guarantors will arrange for the qualification of the Registered ADSs each series of Securities for offer by the Dealer Manager distribution, offering and sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for the distribution of such offerseries of Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that none of the Company, ATC or WCI shall be required to (i) qualify as a foreign corporation or as a dealer in no event shall the Bank be obligated to qualify to do business securities in any jurisdiction in which where it is would not now so qualified or otherwise be required to take qualify but for this Section 4(i), (ii) file any action that would subject it general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, or (iii) subject itself to taxation in any such jurisdiction in which if it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank Until the Closing Date or such other date as may be specified in Schedule I, none of the Company, ATC or WCI (and, if so specified in Schedule I, Time Warner Inc. and/or other additional parties) will, for a period without the consent of twelve months following the Commencement Datemanaging underwriter specified in Schedule I, furnish offer, sell or contract to sell, or announce the Dealer Manager all reports offering of, any debt securities designed or other communications (financial intended to be traded or other) generally made available to stockholdersdistributed in the public or private securities markets; provided, and deliver to however, that the Dealer Manager foregoing shall not prohibit (i) the Company, ATC, WCI, Time Warner Inc. or such additional parties from issuing long-term debt as soon as they are available, copies all or part of the consideration in any merger or acquisition and/or in connection with the settlement of any reports and financial statements furnished to litigation, (ii) the Company, ATC, WCI, Time Warner Inc. or filed or submitted such additional parties from filing with the Commission a "shelf" registration statement for the offering of securities under Rule 415 of the Act (or any similar rule that may be adopted by the Commission) or amending any existing shelf registration statement provided that such securities exchange on which are not issued until the business day following the Closing Date or such other date as may be specified in Schedule I or (iii) any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may foregoing from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)issuing commercial paper.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSs, Securities in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to be cancelledeffect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Southern California Edison Co)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as reasonably practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Salomon Smith Barney Inc. and will not permit Merrill Lynch, Pierce, Fenner & Smith Inx. ("Xxrrill Lynch"), ofxxx, xxll, contract to xxxx, plexxx, or otherwise xxsxxxx of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock other than the Securities; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of the Underwriting Agreement, provided, however, that the Company may (i) file a registration statement on Form S-8, (ii) issue and sell Common Stock pursuant to any employee equity incentive plan, stock ownership plan, director equity incentive plan, employee stock purchase plan or dividend reinvestment plan of the Company in effect at the Execution Time or as described in the Prospectus and (iii) issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD") (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank will comply In connection with all applicable securities and other laws, rules and regulations, including, without limitationthe Directed Share Program, the Sarbanes Oxley ActCompany will ensure that the Directed Shares will be restricted to the extent required by the NASD or the NASD rules from sale, and use its best efforts transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. Salomon Smith Barney Inc. will notify the Company as to cause which Paxxxxxxxxxx xxll need to be so restricted. The Company will direct the Bank’s directors and officers, in their capacities as such, to comply with removal of such laws, rules and regulationstransfer restrictions upon the expiration of such period of time.
(j) The Bank willCompany will pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program (including the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Directed Share Program materials) and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with Salomon Smith Barney Inc. that the Company will comply with all xxxxxxxxxx xxcxxxxxxs and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
(ii) Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not, without the prior written consent of Salomon Smith Barney Inc. and Merrill Lynch, offer, sell, contraxx xx xxxx, xledge or otherwisx xxxxxsx xx, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder) directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock other than the Underwritten Securities to be sold by such Selling Stockholder, or publicly announce an intention to effect any such transaction, for a period of twelve months following 180 days after the Commencement Datedate of this Agreement, furnish other than shares of Common Stock disposed of as bona fide gifts approved by Salomon Smith Barney Inc. and Merrill Lynch.
(b) Such Selxxxx Xxxxxxxxder will not take, xxxxxtxx xx indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change in the Company's condition (financial or otherotherwise), prospects, earnings, business or properties, (ii) generally made available any change in information in the Registration Statement or the Prospectus relating to stockholders, and deliver such Selling Stockholder or (iii) any new material information relating to the Dealer Manager Company or relating to any matter stated in the Prospectus which comes to the attention of such Selling Stockholder.
(d) Such Selling Stockholder will pay all fees and expenses incident to the performance of his obligations under this Agreement which are not otherwise specifically provided for herein, including but not limited to (i) as soon as they are availablefees and expenses of counsel and other advisors for such Selling Stockholder[, copies (ii) fees and expenses of the Custodian,] and (iii) expenses and taxes incident to the sale and delivery of the Underwritten Securities to be sold by such Selling Stockholder to the Underwriters hereunder. This section 5(ii) shall not affect or modify any separate, valid agreement, if any, relating to the allocation of payment of expenses between the Company, on the one hand, and the Selling Stockholders, on the other hand.
(iii) KU agrees with the several Underwriters that:
(a) KU 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 reports security of the KU to facilitate the sale or resale of the Securities.
(b) KU will not, without the prior written consent of Salomon Smith Barney Inc. and financial statements furnished Merrill Lynch, offer, sell, contraxx xx xxxx, xxxxxx or otherwisx xxxxxsx xx, (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 filed otherwise) by KU or submitted any affiliate of KU or any person in privity with KU or any affiliate of KU) directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities exchange on which convertible into or exercisable or exchangeable for such capital stock other than the Securities, or publicly announce an intention to effect any class such transaction, for a period of securities 180 days after the date of this Agreement, except for (i) the transfer of shares of capital stock of the Bank is listed Company pursuant to the options described in the Registration Statement in footnotes 4, 10 (formerly 9), 17 and 20 to the table under the heading "Principal and Selling Stockholders," (ii) such additional information concerning the business and financial condition transfer of shares of capital stock of the Bank Company to any affiliates and/or members of KU or to any of their respective affiliates and/or members and (iii) the transfer of shares of capital stock of the Company as the Dealer Manager may from time to time reasonably request bona fide gifts approved by Merrill Lynch and Salomon Smith Barney Inc., provided that any transfexxx xxxsuant xx xxx xxxxxoxxx xxauses (such statements i) or (ii) agrees in writing to be on a consolidated basis to bound by the extent the accounts terms of the Bank and its subsidiaries are consolidated in reports furnished to stockholdersthis Section 5(iii)(c).
Appears in 1 contract
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object in a timely manner. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event; (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed original or facsimile copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, or subject it to taxation, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Citigroup Global Markets Inc., Xxxxxx Brothers Inc., and CIBC World Markets Corp., 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 of (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any Subsidiary of the Company, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for a period of 180 days following the Execution Time. The foregoing sentence will not permit apply to (i) the Securities to be sold hereunder, (ii) any shares of its Affiliates toCommon Stock issued or options to purchase Common Stock or other Common Stock-based awards granted pursuant to any stock award plan, resell stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (iii) issuances of Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the Execution Date, (iv) any Registered ADSs that have been acquired shares of capital stock of the Company or securities convertible into or exercisable or exchangeable for such capital stock as payment of any part of the purchase price for the acquisition by them. The Bank will cause all Rule 144A ADSs accepted the Company of a business or assets (“Acquisition Securities”); provided that, (A) in the Exchange Offer aggregate, such Acquisition Securities shall not exceed 10% of the outstanding capital stock of the Company immediately prior to such acquisition and (B) the recipient of any such Acquisition Securities shall agree in writing to be cancelledbound by the terms of the letter substantially in the form of Exhibit A hereto, and (v) the filing of any registration statement with the Commission on Form S-8 (or any successor form) with respect to any stock incentive plan, stock ownership plan or dividend reinvestment plan.
(g) The Bank For so long as a prospectus relating to the Securities is required to be delivered under the Act, the Company will cooperate comply in all material respects with all applicable securities and other laws, rules and regulations, including, without limitation, the Dealer Manager Sarbanes Oxley Act, and use its commercially reasonably best reasonable efforts to permit cause the Registered ADSs Company’s directors and officers, in their capacities as such, to be eligible for clearance comply with such laws, rules and settlement through The Depository Trust Companyregulations, including, without limitation, the provisions of the Sarbanes Oxley Act.
(h) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or (including filing fees and the reasonable fees and expenses of one firm of counsel for the Underwriters relating to such registration and qualification); (vii) any non-U.S. jurisdiction filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualificationfilings); (viviii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company’s accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (viiix) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholders of its their obligations hereunder hereunder.
(j) The Company agrees to pay (1) all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Exchange Offer.
Directed Share Program, (i2) The Bank all costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Share Program material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with Citigroup Global Markets Inc. that the Company will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, regulations in each foreign jurisdiction in which the Sarbanes Oxley Act, and use its best efforts to cause Directed Shares are offered in connection with the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulationsDirected Share Program.
(jii) The Bank willEach Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will not take, for directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(b) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a period of twelve months following the Commencement Date, furnish prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications dealer may be required under the Act, of (i) any material change in the Company’s condition (financial or other) generally made available to stockholdersotherwise), and deliver prospects, earnings, business or properties, which comes to the Dealer Manager (i) as soon as they are availableattention of such Selling Stockholder, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) any change in information in the Registration Statement or the Prospectus relating to such additional Selling Stockholder or (iii) any new material information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis relating to the extent Company or relating to any matter stated in the accounts Prospectus which comes to the attention of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)such Selling Stockholder.
Appears in 1 contract
Samples: Underwriting Agreement (Williams Scotsman International Inc)
Agreements. The Bank Company agrees with the Dealer Manager Underwriter that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferUnderwritten Securities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with or any Rule 462(b) Registration Statement unless the Company has furnished the Underwriter a copy of for its review prior to filing and will not file any such proposed amendment or supplementsupplement to which it reasonably objects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Underwriter with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Underwriter of such timely filing. The Bank Company will promptly advise you the Underwriter (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferUnderwritten Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Underwritten Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Underwritten Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act, the Company promptly will (1) notify the Underwriter of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance; and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Underwriter an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Underwriter and counsel for the Dealer Manager without charge in such quantities Underwriter signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or a dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Underwriter may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Underwritten Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Underwriter may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Underwritten Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to taxation or service of process in suits, other than those arising out of the offering or sale of the Registered ADSsUnderwritten Securities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will notcomply with all applicable securities and other applicable laws, rules and regulations, including the Sarbanes Oxley Act, and will not permit any to use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including the provisions of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelledSarbanes Oxley Act.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Underwritten Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) each amendment or supplement to any of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offerthem; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Underwritten Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Underwritten Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Underwritten Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Underwritten Securities; (v) the registration of the Underwritten Securities under the Exchange Act and the listing of the Underwritten Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Underwritten Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriter relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferUnderwritten Securities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(i) The Bank Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, continue to comply with such lawsits obligations under the Share Loan Registration Rights Agreement dated as of November 22, rules 2004, between the Company and regulationsthe Underwriter.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Samples: Underwriting Agreement (Charter Communications Inc /Mo/)
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to tax or service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Banc of America Securities LLC, J.P. Morgan Securities Inc. and will not permit Salomon Smith Barney Inc., offex, xxxx, xxntract to sell, pledgx, xx xxxxxxxxx dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any debt securities (excluding commercial paper or bank borrowings) issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to be cancelledeffect any such transaction, until the Business Day set forth on Schedule I hereto.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Exchange Act or cause to be paid the costs and expenses relating to the following matters: (i) the feesotherwise, disbursements and expenses stabilization or manipulation of the Bank’s counsel and accountants in connection with the registration price of any security of the Registered ADSs under Company to facilitate the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp sale or transfer taxes in connection with the original issuance and sale resale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representative of such timely filing. The Bank Company will promptly advise you the Representative (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for that purpose, (6) of any order by the Commission directed to the adequacy of any document incorporated by reference in the Prospectus or of any challenge made by the Commission as to the adequacy of any such purpose, document and (vi7) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when, in the opinion of counsel for the Underwriters, a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended supplemented would, in the reasonable opinion of the Company or supplementedof counsel for the Underwriters, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary necessary, in the reasonable opinion of the Company or of counsel for the Underwriters, to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representative of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; , and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge Underwriters in such quantities as the Dealer Manager Representative may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Representative an earning statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may, in the opinion of counsel for any of the Underwriters, be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Representative may reasonably request. With respect to any delivery of documents occurring no more than nine months after the first date of public offering of the Securities, the Company will pay the expenses of printing or other production of all documents relating to the offering. Should the delivery of prospectuses with respect to any of the Securities be required more than nine months after the first date of public offering of the Securities, the Underwriter or dealer requesting such prospectuses will pay the reasonable expenses of printing or other production of such prospectuses.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representative may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSs, Securities in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge, xx xxhxxxxxx dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any long-term debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to be cancelledeffect any such transaction, for a period of 60 days after the date of the Underwriting Agreement.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of any of the Securities.
(h) The Bank agrees to Company will pay or cause to be paid the costs all expenses and expenses relating to the following matters: taxes (iexcept transfer taxes) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with (1) the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing preparation and filing with the Commission by it of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and all amendments and supplements thereto and the mailing and delivering thereto, (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii2) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with (3) the original issuance and sale qualification of the Securities; Securities under blue-sky laws (ivincluding expenses of counsel and counsel fees not to exceed $7,500), and (4) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) to the Underwriters of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification reasonable quantities of the Registered ADSs for offer and sale under the blue sky laws Registration Statement and, except as provided in Section 5(d) hereof, of the several states or Prospectus. The Company shall not, however, be required to pay any non-U.S. jurisdiction (including filing fees and the reasonable fees and amount for any expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives Underwriters, except as otherwise provided in connection with presentations to prospective participants Section 7. The Company shall not in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident any event be liable to the performance by the Bank Underwriters for damages on account of its obligations hereunder and in connection with the Exchange Offerloss of anticipated profits.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).
Appears in 1 contract
Agreements. The Bank agrees Company and the Operating Partnership agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing you with or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives a copy of for the Representatives’ review prior to filing and will not file any such proposed amendment or supplementsupplement to which the Representatives reasonably objects. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430B, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Datefiling of the Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade at such time not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Securities Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time event, (2) subject to the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiia) of this sentence; (ii) Section 5, prepare an amendment or supplement that will correct such statement or omission or effect such compliance; compliance and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager Representatives and counsel for to the Dealer Manager without charge Representatives in such quantities as the Dealer Manager they may reasonably request.
(d) The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, which consent will not be unreasonably withheld, it will not make, any offer relating to the Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(e) The Bank Company will use its best efforts to list, subject to notice of issuance, the Securities on the New York Stock Exchange.
(f) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(g) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Securities in cooperation such a manner as would require the Company or any of its Subsidiaries to register as an investment company under the Investment Company Act.
(h) During the time when a prospectus relating to the Securities is required to be delivered under the Securities Act the Company shall file, on a timely basis, with the Dealer Manager Commission and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act. Additionally, the Company shall report the use of proceeds from the issuance of the Securities as may be required under Rule 463 under the Securities Act.
(i) The Company will furnish to the Representatives and counsel for the Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act, as many copies of each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(j) The Company will arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate designate, and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fk) The Bank Company will not, and will not permit without the prior written consent of the Representatives, for a period of 60 days after the date of this Agreement, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or would reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement (except for amendments or supplements to the registration statement on Form S-8 relating to the 2005 Equity Incentive Plan, registration statements on Form S-3 (File Nos. 333-139706 and 333-151496) relating to the sale of common stock from time to time by the selling stockholders specified therein and any amendments or supplements thereto, or a registration statement on Form S-4 relating to the acquisition of real property, another real property company or a property management company) 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 Offer Act, with respect to, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock, or publicly disclose an intention to be cancelledeffect any such transaction, provided, however, that the Company may (i) grant stock options, restricted stock or long-term incentive units to employees, consultants or directors pursuant to the terms of a plan in effect at the Execution Time, (ii) issue Common Stock pursuant to: (A) the exercise of such options; (B) the redemption of Units issued upon conversion of such long-term incentive plan units; (C) the exercise of any employee stock options outstanding at the Execution Time; (D) the redemption of Units issued upon conversion of long-term incentive plan units outstanding at the Execution Time; (E) the redemption of any Units outstanding at the Execution Time, (iii) issue Common Stock pursuant to the Company’s dividend reinvestment plan (if any), and (iv) issue Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with acquisitions of real property, real property companies or property management companies. Notwithstanding the foregoing, if: (x) during the last 17 days of the 60-day lock-up period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the 60-day lock-up period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 60-day lock-up period, the restrictions described above shall continue to apply until the expiration of the 18-day period beginning on the date of the issuance of the earnings release or the occurrence of the material news or material event.
(gl) The Bank Company will cooperate comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Dealer Manager Sarbanes Oxley Act, and will use its commercially reasonably best efforts to permit cause the Registered ADSs Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act, except where the failure to comply or to cause the Company’s directors and officers to comply with such laws would not reasonably be eligible for clearance expected to have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and settlement through The Depository Trust Companyits Subsidiaries taken as a whole.
(hm) Neither the Company nor the Operating Partnership will take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company or the Operating Partnership to facilitate the sale or resale of the Securities.
(n) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Prospectus and amendments each Issuer Free Writing Prospectus, and supplements thereto each amendment or supplement to any of them; (ii) the printing (or reproduction) and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) any filings required to be made with the Financial Industry Regulatory Authority (“FINRA”) (including filing fees and the reasonable fees and expenses incurred in connection with listing of counsel for the Registered ADSs on Underwriters relating to such filings); (viii) the New York Stock Exchangefees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (viiiix) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(io) The Bank Company and the Operating Partnership will comply with all applicable securities and other laws, rules and regulations, including, without limitation, use the Sarbanes Oxley Act, and net proceeds received by the Company from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(p) The Company will use its best efforts to cause meet the Bank’s directors and officers, in their capacities as such, requirements to comply with such laws, rules and regulations.
(j) The Bank willqualify, for the taxable year ending December 31, 2009, for taxation as a period of twelve months following REIT under the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Code.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) notify the Representatives of such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (iii) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Underwriters an earnings statement or statements of the Bank Company and its the Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits) and, so long as delivery of a prospectus by an Underwriter or a dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, without the prior written consent of Xxxx Xxxxx Xxxx Xxxxxx, Incorporated, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing (except that the filing of amendments or supplements to the Registration Statement on Form S-3 filed with the Securities and will not permit Exchange Commission on September 22, 2003 shall be permitted)) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Shares or any securities convertible into, or exercisable, or exchangeable for, Common Shares; or publicly announce an intention to effect any such transaction, for a period of 45 days after the date of the Underwriting Agreement; provided, however, that the Company may issue and sell Common Shares pursuant to any employee or trustee option or long-term incentive plan, share ownership plan or dividend purchase or reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Shares issuable upon the conversion or redemption of securities or the exercise of options or warrants outstanding at the Execution Time or the conversion or redemption of units in the Operating Partnership outstanding at the Execution Time; or the conversion of equity in any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted the Subsidiaries identified on Schedule II as "Joint Ventures" pursuant to and in accordance with conversion rights in effect at the Exchange Offer to be cancelledExecution Time.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and will use its best efforts to cause the Bank’s directors Company's trustees and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act.
(jh) The Bank willCompany will not take, for a period 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 twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies price of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities security of the Bank is listed and (ii) such additional information concerning Company to facilitate the business and financial condition sale or resale of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Securities.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or (y) any supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Final Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Final Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with 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 Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause meet the Bank’s directors and officers, requirements to qualify as a REIT under the Code unless the Company's Board of Directors determines by resolution that it is in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities best interests of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time Company's stockholders not to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)so qualify.
Appears in 1 contract
Samples: Underwriting Agreement (Shurgard Storage Centers Inc)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to counsel for be delivered under the Dealer ManagerAct, without charge, during any event occurs as a result of which the period beginning on Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the Commencement Date and continuing to and including statements therein in the Settlement Date, copies light of the Offering Documents circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its the Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior The Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of the Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager efforts, to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Salxxxx Xxxxx Xxrney Inc., offer, sell, or contract to sell, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 90 days after the date of this Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, restricted stock plan, employee stock purchase plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate with not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Dealer Manager and use its commercially reasonably best efforts Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to permit facilitate the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Companysale or resale of the Securities.
(h) The Bank Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), the ADR Registration Statement Preliminary Prospectus, the Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, the Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives (excluding the Underwriters) in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and Hynix; and (viiix) all other costs and expenses incident to the performance by the Bank Company and Hynix of its their obligations hereunder and in connection with the Exchange Offerhereunder.
(iii) The Bank Hynix agrees with the several Underwriters that:
(a) Hynix will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of Salxxxx Xxxxx Barxxx Xxc., 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 Sarbanes Oxley Actdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, and use its best efforts or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to cause the Bank’s directors and officers, in their capacities as such, to comply with effect any such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 90 days after the Commencement Datedate of this Agreement, furnish other than shares of Common Stock disposed of as bona fide gifts approved by Salxxxx Xxxxx Xxrney Inc.
(b) Hynix will not take any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Hynix will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Dealer Manager all reports Securities by an underwriter or other communications (financial or other) generally made available to stockholdersdealer may be required under the Act, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished change in information in the Registration Statement or the Prospectus relating to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Hynix.
Appears in 1 contract
Samples: Underwriting Agreement (Maxtor Corp)
Agreements. The Bank Company agrees with the Dealer Manager Underwriter that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause any post-effective amendment to the effectiveness of the Registration Statement and the ADR Registration Statement, if not effective at the Execution Time, to cause any amendment thereof become effective. Prior to be declared effective by the Commission, and to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferShares, the Bank Company will not file (x) any amendment to of the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Prospectus) to the Base Prospectus or any new registration statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplementreasonably object. Subject to the foregoing sentence, if the filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by you with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filing. The Bank Company will promptly advise you (i1) when any post-effective amendment to the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), ; (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferShares, any post-effective amendment to the Registration Statement or new registration statement relating to the ADR Registration Statement Shares shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR Registration Statement filing of a new registration statement relating to the Shares or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement such new registration statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Shares for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order andor the suspension of any such qualification, and if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior to the Settlement Datefiling of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade at such time not misleading, the Company will (1) notify promptly the Underwriter so that any use of the Disclosure Package may cease until it is amended or supplemented; (2) amend or supplement the Disclosure Package to correct such statement or omission; and (3) supply any amendment or supplement to you in such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the Exchange Act or the respective rules thereunder, the Bank Company promptly will promptly: (i1) notify you of such event, (2) prepare and file with the Dealer Manager Commission, subject to the second sentence of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause paragraph (iiia) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii3) supply any such amendment or supplement supplemented Prospectus to the Dealer Manager and counsel for the Dealer Manager without charge you in such quantities as the Dealer Manager you may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to you an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Bank Company will use its best efforts furnish to you and your counsel, without charge, signed copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter or dealer may be required by the Act (including in cooperation with circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Dealer Manager to Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Underwriter may reasonably request.
(f) The Company will arrange, if necessary, for the qualification of the Registered ADSs Shares for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager you may designate and designate, will maintain such qualifications in effect so long as required for such offerthe distribution of the Shares and will pay any fee of FINRA in connection with its review of the offering; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsShares, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate Company agrees that, unless it has or shall have obtained the prior written consent the Underwriter agrees with the Dealer Manager Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not and use its commercially reasonably best efforts will not make any offer relating to permit the Registered ADSs Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a "free writing prospectus" (as defined in Rule 405) required to be eligible for clearance filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter or the Company is hereinafter referred to as a "Permitted Free Writing Prospectus." The Company agrees that (x) it has treated and settlement through The Depository Trust Companywill treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(h) The Bank Company will not, without your prior written consent, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of the Underwriting Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any director or employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time. Notwithstanding the foregoing, if (x) during the last 17 days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The Company will provide the Underwriter and any co-managers and each individual subject to the restricted period pursuant to the lockup letters described in Section 6(i) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(i) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act of 2002, and to use its best efforts to cause the Xxxxxxx'x xxxxctors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act of 2002.
(j) The Company will not take, directxx xx xxxxxxxxly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(k) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: :
(i1) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement and the Exchange Offer Prospectus and amendments each Issuer Free Writing Prospectus, and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) each amendment or supplement to any of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offerthem; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv2) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (3) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (4) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Shares; (v5) listing of the Shares on the New York Stock Exchange; (6) any registration or qualification of the Registered ADSs Shares for offer and sale under the securities or blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriter relating to such registration and qualification); (vi7) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such filings); (8) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferShares; (vii9) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company; and (viii10) all other costs and expenses incident to the performance by the Bank Company of its obligations hereunder and in connection with the Exchange Offerhereunder.
(il) The Bank Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause continue to meet the Bank’s directors and officers, in their capacities requirements for qualification as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities REIT under Sections 856 through 860 of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Code.
Appears in 1 contract
Agreements. The Bank agrees Company and the Guarantor agree with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each Each of the Registration Statement Company and the ADR Registration Statement, the Bank Guarantor will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereto, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to Securities, neither the Exchange Offer, Company nor the Bank Guarantor will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Final Prospectus) to the Basic Prospectus unless the Company or the Guarantor has furnished you a copy for your review prior to filing and neither will file any such proposed amendment or supplement to which you reasonably object on a timely basis (other than filings of periodic reports pursuant to Section 13(a) under the Exchange Offer Prospectus without first providing you with a copy of such amendment or supplementAct). Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), Company and the Bank Guarantor will cause the Exchange Offer Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company or the Guarantor will promptly advise you the Representatives (i) when the Registration Statement and Statement, if not effective at the ADR Registration StatementExecution Time, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange Offereach series of Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv) of any request by the Commission or its staff for any amendment of to the Registration Statement or the ADR Registration Statement or supplement to the Exchange Offer Final Prospectus or for any additional informationinformation relating to the offering of the Securities, (v) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi) of the receipt by the Bank Company or the Guarantor of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Bank Each of the Company and the Guarantor will use its commercially reasonable best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish If, at any time when a prospectus relating to the Dealer Manager and Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary, in the opinion of counsel for you or counsel for the Dealer ManagerCompany and the Guarantor, without chargeto amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, during the period beginning on Company and the Commencement Date Guarantor promptly will prepare and continuing file with the Commission, subject to and including the Settlement Datesecond sentence of paragraph (a) of this Section 4, copies of the Offering Documents and any amendments and supplements thereto in an amendment or supplement which will correct such quantities as the Dealer Manager may reasonably requeststatement or omission or effect such compliance.
(c) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company and the Guarantor will make generally available to their respective security holders and to the Representatives an earnings statement or statements of each of the Bank Company and its Subsidiaries the Guarantor and their respective subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior If and to the Settlement extent specified in Schedule I, each of the Company and the Guarantor will use its best efforts to cause the Securities to be duly authorized for listing on the New York Stock Exchange and to be registered under the Exchange Act.
(e) For a period of three years after the Closing Date, any event occurs the Guarantor will furnish to you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as a result may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Guarantor to its public stockholders generally.
(f) The proceeds of which the Exchange Offer Prospectus, offering of the Securities will be applied as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, set forth in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement Final Prospectus.
(g) The Company or the Exchange Offer Prospectus to comply with applicable law, the Bank Guarantor will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement furnish to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(eh) The Bank Company and the Guarantor will use its best efforts pay and bear all costs and expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits), as originally filed and as amended, any preliminary prospectus supplements and the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof to the Underwriters, (ii) the preparation, printing and distribution of this Agreement, the Indenture, the Securities, any Delayed Delivery Contracts, the Blue Sky Survey and the Legal Investment Survey, (iii) the delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company's and the Guarantor's counsel and the accountants required hereby to provide "comfort letters", (v) the qualification of the Securities under the applicable securities laws in cooperation accordance with Section 4(i) and any filing for review of the offering with the Dealer Manager to arrangeNational Association of Securities Dealers, if necessaryInc., including filing fees and fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the Blue Sky Survey and the Legal Investment Survey, (vi) any fees charged by rating agencies for rating the Securities, (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Securities, (viii) any expenses and listing fees in connection with the listing of the Securities, (ix) the cost and charges of any transfer agent or registrar and (x) the costs of qualifying the Securities with The Depository Trust Company.
(i) The Company and the Guarantor will arrange for the qualification of the Registered ADSs each series of Securities for offer by the Dealer Manager distribution, offering and sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and designate, will maintain such qualifications in effect so long as required for the distribution of such offerseries of Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors; provided provided, however, that neither the Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or as a dealer in no event shall the Bank be obligated to qualify to do business securities in any jurisdiction in which where it is would not now so qualified or otherwise be required to take qualify but for this Section 4(i), (ii) file any action that would subject it general consent to service of process in suits, other than those arising out of the offering of the Registered ADSs, or (iii) subject itself to taxation in any such jurisdiction in which if it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank Until the Closing Date or such other date as may be specified in Schedule I, none of the Company or the Guarantor (and if so specified in Schedule I, TBS or TWE) will, for a period without the consent of twelve months following the Commencement Datemanaging underwriter specified in Schedule I, furnish offer, sell or contract to sell, or announce the Dealer Manager all reports offering of, any debt securities designed or other communications (financial intended to be traded or other) generally made available to stockholdersdistributed in the public or private securities markets; provided, and deliver to however, that the Dealer Manager foregoing shall not prohibit (i) the Company, the Guarantor, TBS or TWE from issuing long-term debt as soon as they are available, copies all or part of the consideration in any merger or acquisition and/or in connection with the settlement of any reports and financial statements furnished to litigation, (ii) the Company, the Guarantor, TBS or filed or submitted TWE from filing with the Commission a "shelf" registration statement for the offering of securities under Rule 415 of the Act (or any similar rule that may be adopted by the Commission) or amending any existing shelf registration statement provided that such securities exchange on which are not issued until the business day following the Closing Date or such other date as may be specified in Schedule I or (iii) any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may foregoing from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)issuing commercial paper.
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager without charge in such quantities as the Dealer Manager may reasonably request.
(e) The Bank will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs for offer by the Dealer Manager under the laws of such jurisdictions as the Dealer Manager may designate and will maintain such qualifications in effect so long as required for such offer; provided that in no event shall the Bank be obligated to qualify to do business in any jurisdiction in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering of the Registered ADSs, in any jurisdiction in which it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank will, for a period of twelve months following the Commencement Date, furnish to the Dealer Manager all reports or other communications (financial or other) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and (ii) such additional information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to the extent the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders).any
Appears in 1 contract
Agreements. (a) The Bank Company agrees with the Dealer Manager several Underwriters that:
(ai) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the time this Agreement is executed, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the time this Agreement is executed, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bii) The Bank Company will furnish (i) not make any offer relating to the Dealer Manager Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Act) required to be filed by the Company with the Commission under Rule 433 under the Act unless the Representatives approve its use in writing prior to first use (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectus(es) included in Schedule III hereto, (ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164 and 433 under the Act applicable to counsel for the Dealer Managerany Issuer Free Writing Prospectus, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Daterequirements relating to timely filing with the Commission, legending and record keeping and (iv) not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(iii) To the extent necessary, the Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Securities, in form and substance satisfactory to the Representatives, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to the close of business two business days after the date hereof; provided that the Company shall provide the Representatives with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Offering Documents Representatives or counsel to the Underwriters shall reasonably object.
(iv) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (1) notify the Representatives of any such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a)(i) of this Section 5, an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any amendments and supplements thereto supplemented Prospectus to you in such quantities as the Dealer Manager you may reasonably request.
(cv) After the consummation of the Exchange OfferAs soon as practicable, the Bank Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(dvi) If, at any time prior The Company will make available to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(evii) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(fviii) (A) The Bank Company will not, and will not permit without the prior written consent of Deutsche Bank Securities Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the Exchange Offer disposition (whether by actual disposition or effective economic disposition due to be cancelled.
(gcash settlement or otherwise) The Bank will cooperate by the Company or any affiliate of the Company or any person in privity with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay Company or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses any affiliate of the Bank’s counsel and accountants Company) directly or indirectly, including the filing (or participation in connection with the filing) of a registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing 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 the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation Section 16 of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this AgreementAct, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification shares of the Registered ADSs for offer and sale under the blue sky laws of the several states Common Stock or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses securities convertible into, or exercisable, or exchangeable for, shares of counsel for the Dealer Manager relating Common Stock; or publicly announce an intention to effect any such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 75 days after the Commencement Datedate of the Underwriting Agreement (the “Restricted Period”), furnish provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, employee stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Applicable Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants or options outstanding at the Applicable Time. If (1) during the last 17 days of the Restricted Period the Company issues an earnings release or material news or a material event relating to the Dealer Manager all reports Company occurs or other communications (financial or other2) generally made available to stockholders, and deliver prior to the Dealer Manager (i) as soon as they are available, copies of any reports and financial statements furnished to or filed or submitted with the Commission or any securities exchange on which any class of securities expiration of the Bank is listed and (ii) such additional information concerning Restricted Period the business and financial condition Company announces that it will release earnings results during the 16-day period beginning on the last day of the Restricted Period, unless otherwise waived by the Deutsche Bank as Securities Inc. in its sole discretion, then the Dealer Manager may from time foregoing restrictions shall continue to time reasonably request (such statements to be on a consolidated basis to apply until the extent the accounts expiration of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
Appears in 1 contract
Samples: Underwriting Agreement (Taleo Corp)
Agreements. (i) The Bank Company agrees with the Dealer Manager several Underwriters that:
(a) Following the declaration of effectiveness of each of the Registration Statement and the ADR Registration Statement, the Bank The Company will use its best efforts to maintain cause the effectiveness of the Registration Statement and the ADR Registration Statement, to cause if not effective at the Execution Time, and any amendment thereof thereof, to be declared effective by the Commission, and become effective. Prior to cause the Registered ADSs to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to of the Registration Statement or the ADR Registration Statement or (y) any supplement to the Exchange Offer Prospectus without first providing or any Rule 462(b) Registration Statement unless the Company has furnished you with a copy of for your review prior to filing and will not file any such proposed amendment or supplementsupplement to which you reasonably object. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Exchange Offer Prospectus is otherwise required under Rule 424(b), the Bank Company will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence reasonably satisfactory to you the Representatives of such timely filing. The Bank Company will promptly advise you the Representatives (i1) when the Registration Statement and the ADR Registration Statement, and any amendment theretoif not effective at the Execution Time, shall have become effective, (ii2) when the Exchange Offer Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (iii3) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv4) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Prospectus or for any additional information, (v5) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purpose, that purpose and (vi6) of the receipt by the Bank Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Bank will furnish to the Dealer Manager and to counsel for the Dealer Manager, without charge, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies of the Offering Documents and any amendments and supplements thereto in such quantities as the Dealer Manager may reasonably request.
(c) After the consummation of the Exchange Offer, the Bank will make generally available an earnings statement or statements of the Bank and its Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) If, at any time prior when a prospectus relating to the Settlement DateSecurities is required to be delivered under the Act, any event occurs as a result of which the Exchange Offer Prospectus, Prospectus as then amended or supplemented, supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should shall be necessary to amend the Registration Statement or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable lawthe Act or the rules thereunder, the Bank Company promptly will promptly: (i1) notify the Dealer Manager Representatives of any such event or non-compliance at which time event, (2) prepare and file with the Dealer Manager shall be entitled Commission, subject to cease soliciting tenders until such time as the Bank has complied with clause second sentence of paragraph (iiii)(a) of this sentence; (ii) prepare Section 5, an amendment or supplement that which will correct such statement or omission or effect such compliance; compliance and (iii3) supply any supplemented Prospectus to you in such amendment or supplement quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Dealer Manager Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the Dealer Manager Underwriters signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without charge in such quantities exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus and the Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(e) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager Representatives may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, or to subject itself to taxation in any such jurisdiction in which where it is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank Company will not, and will not permit without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any of its Affiliates transaction which is designed to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Offer Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to be cancelledeffect any such transaction, for a period of 180 days after the date of this Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Bank Company will cooperate comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Dealer Manager Xxxxxxxx-Xxxxx Act, and will use its commercially reasonably best efforts to permit cause the Registered ADSs Company's directors and officers, in their capacities as such, to be eligible for clearance comply with such laws, rules and settlement through The Depository Trust Companyregulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(h) The Bank Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing or reproduction and filing with the Commission of the Registration StatementStatement (including financial statements and exhibits thereto), each Preliminary Prospectus, the ADR Registration Statement Prospectus, and each amendment or supplement to any of them; (ii) the Exchange Offer Prospectus printing (or reproduction) and amendments and supplements thereto and the mailing and delivering delivery (including postage, air freight charges and charges for counting and packaging) of such copies thereof of the Registration Statement, each Preliminary Prospectus, the Prospectus, and all amendments or supplements to the Dealer Managerany of them, as may, in each case, be reasonably requested for use in connection with the conduct offering and consummation sale of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange OfferSecurities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offeroffering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Registered ADSs Securities for offer and sale under the securities or blue sky laws pursuant to paragraph (i)(e) of the several states or any non-U.S. jurisdiction this Section (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager Underwriters relating to such registration and qualification); (vivii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Bank Company representatives in connection with presentations to prospective participants in purchasers of the Exchange OfferSecurities; (viiix) the fees and expenses incurred in connection with listing of the Registered ADSs on Company's accountants and the New York Stock Exchangefees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (viiix) all other costs and expenses incident to the performance by the Bank Company and the Selling Stockholders of its their obligations hereunder and in connection with the Exchange Offerhereunder.
(iii) The Bank Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder will comply with all applicable securities and other laws, rules and regulations, includingnot, without limitationthe prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the Sarbanes Oxley Actdisposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Selling Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder), and use its best efforts directly or indirectly, or file (or participate 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 with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to cause the Bank’s directors and officers, in their capacities as such, to comply with effect any such laws, rules and regulations.
(j) The Bank willtransaction, for a period of twelve months following 180 days after the Commencement Date, furnish date of this Agreement. Notwithstanding anything herein to the Dealer Manager all reports contrary, Xxxxxxx Xxxxx, & Co., Spear, Leeds & Xxxxxxx, L.L.C. and their respective affiliates (other than GS Mezzanine Partners, L.P., GS Mezzanine Partners Offshore, L.P., Stone Street Fund 1998, L.P., Bridge Street Fund 1998, L.P., Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx) may engage in brokerage, investment advisory, investment company, financial advisory, anti-raid advisory, merger advisory, financing, asset management, trading, market making, arbitrage and other similar activities conducted in the ordinary course of its and its affiliates' business.
(b) Such Selling Stockholder will not take, directly or other communications indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of (i) any material change in the Company's condition (financial or other) generally made available to stockholdersotherwise), and deliver to the Dealer Manager (i) as soon as they are availableprospects, copies of any reports and financial statements furnished to earnings, business or filed or submitted with the Commission or any securities exchange on which any class of securities of the Bank is listed and properties, (ii) any change in information in the Registration Statement or the Prospectus relating to such additional Selling Stockholder or (iii) any new material information concerning the business and financial condition of the Bank as the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis relating to the extent Company or relating to any matter stated in the accounts Prospectus which comes to the attention of such Selling Stockholder.
(d) Such Selling Stockholder will comply with the Bank and its subsidiaries are consolidated agreement contained in reports furnished to stockholdersSection 5(i)(i).
Appears in 1 contract
Agreements. The Bank Company agrees with the Dealer Manager thateach Underwriter as follows:
(a) Following Immediately following the declaration of effectiveness of each execution of the Registration Statement Terms Agreement, the Company will prepare a Final Prospectus setting forth the principal amount of Securities covered thereby and their terms not otherwise specified in the Base Prospectus or any Preliminary Prospectus, the names of the Underwriters participating in the offering and the ADR Registration Statementprincipal amount of Securities which each severally has agreed to purchase, the Bank will use its best efforts to maintain the effectiveness names of the Registration Statement Underwriters acting as co-managers in connection with the offering, if any, the price at which the Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the selling concession and reallowance, if any, and such other information as you and the ADR Registration StatementCompany deem appropriate in connection with the offering of the Securities. The Company will, within the time periods specified by Rule 424(b), transmit copies of the Final Prospectus to cause any amendment thereof the Commission for filing pursuant to be declared effective by Rule 424(b) of the Commission, Act and will furnish to cause the Registered ADSs Underwriters as many copies of the Final Prospectus as you shall reasonably request.
(b) Prior to be approved for listing on the New York Stock Exchange. Between the date of entering into this Agreement and the termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, the Bank Company will not file (x) any amendment to the Registration Statement or supplement (including the ADR Registration Statement Final Prospectus or (yany Preliminary Prospectus) to the Base Prospectus unless you have been furnished a copy for review prior to filing and the Company will not file any such proposed amendment or supplement to the Exchange Offer Prospectus without first providing which you with a copy of such amendment or supplement. Subject to the foregoing sentence, if filing of the Exchange Offer Prospectus is required under Rule 424(b), the Bank will cause the Exchange Offer Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence reasonably satisfactory to you of such timely filingobject. The Bank Company will promptly advise you (i1) when the Registration Statement and the ADR Registration Statement, and any amendment thereto, shall have become effective, (ii) when the Exchange Offer Final Prospectus, and any supplement thereto or any document incorporated thereinthereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (iii2) when, prior to termination of the offering of the Registered ADSs pursuant to the Exchange OfferSecurities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (iv3) of any request by the Commission or its staff for any amendment of the Registration Statement Statement, or the ADR any Rule 462(b) Registration Statement Statement, or for any supplement to the Exchange Offer Final Prospectus or for any additional information, (v4) of the issuance by the Commission of any order relating to any document incorporated in the Exchange Offer Prospectus or any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or the Bank becoming aware of the institution or threatening of any proceeding for any such purposethat purpose or pursuant to Section 8A of the Act, and (vi5) of the receipt by the Bank Company of any notice of objection to the use of the Registration Statement, any amendment or supplement thereto pursuant to Rule 401(g)(2) under the Act, any Preliminary Prospectus, or the Final Prospectus, and (6) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registered ADSs Securities for sale in any jurisdiction or the initiation institution or threatening of any proceeding for such purpose. The Bank Company will use its commercially reasonable efforts to prevent the issuance of any such stop order or notice of objection or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(bc) The Bank will furnish Company shall pay the required Commission filing fees relating to the Dealer Manager Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and to counsel for otherwise in accordance with Rules 456(b) and 457(r) under the Dealer ManagerAct.
(d) Unless otherwise specified in the Terms Agreement, without chargethe Company will prepare a final term sheet, during the period beginning on the Commencement Date and continuing to and including the Settlement Date, copies containing solely a description of final terms of the Offering Documents Securities and the offering thereof, substantially in the form set forth in Exhibit B hereto and in the form approved by you and attached as Schedule III to the Terms Agreement and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(e) If, at any amendments time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company promptly will (i) notify you so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and supplements thereto (iii) supply any amendment or supplement to you in such quantities as the Dealer Manager you may reasonably request.
(cf) After If, at any time when a prospectus relating to the consummation Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange OfferAct, the Bank Company promptly will (1) notify you of such event, (2) prepare and file with the Commission an amendment or supplement which will correct such statement or omission or effect such compliance and (3) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(g) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Bank Company and its Subsidiaries subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(dh) IfUpon request, at any time prior the Company will furnish to the Settlement Date, any event occurs as a result of which the Exchange Offer Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit Representatives and to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Registration Statement, the ADR Registration Statement or the Exchange Offer Prospectus to comply with applicable law, the Bank will promptly: (i) notify the Dealer Manager of any such event or non-compliance at which time the Dealer Manager shall be entitled to cease soliciting tenders until such time as the Bank has complied with clause (iii) of this sentence; (ii) prepare an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any such amendment or supplement to the Dealer Manager and counsel for the Dealer Manager Underwriters, without charge in such quantities charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Dealer Manager Representatives may reasonably request.
(ei) The Bank Company will use its best efforts in cooperation with the Dealer Manager to arrange, if necessary, for the qualification of the Registered ADSs Securities for offer by the Dealer Manager sale under the laws of such jurisdictions as the Dealer Manager you may designate and will maintain such qualifications in effect so long as required for such offerthe distribution of the Securities; provided that in no event shall the Bank Company be obligated to qualify to do business in any jurisdiction in which where it is not now so qualified or to take any action that would subject it either of them to service of process in suits, other than those arising out of the offering or sale of the Registered ADSsSecurities, in any jurisdiction in which it where either of them is not now so subject. The Bank will promptly advise the Dealer Manager of the receipt by the Bank of any notification with respect to the suspension of the qualification of the Registered ADSs for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) The Bank will not, and will not permit any of its Affiliates to, resell any Registered ADSs that have been acquired by them. The Bank will cause all Rule 144A ADSs accepted in the Exchange Offer to be cancelled.
(g) The Bank will cooperate with the Dealer Manager and use its commercially reasonably best efforts to permit the Registered ADSs to be eligible for clearance and settlement through The Depository Trust Company.
(h) The Bank agrees to pay or cause to be paid the costs and expenses relating to the following matters: (i) the fees, disbursements and expenses of the Bank’s counsel and accountants in connection with the registration of the Registered ADSs under the Act and all other expenses in connection with the preparation, printing and filing with the Commission of the Registration Statement, the ADR Registration Statement and the Exchange Offer Prospectus and amendments and supplements thereto and the mailing and delivering (including postage, air freight charges and charges for counting and packaging) of such copies thereof to the Dealer Manager, as may, in each case, be reasonably requested for use in connection with the conduct and consummation of the Exchange Offer; (ii) the preparation of this Agreement and the Registered Deposit Agreement, the deposit of the Registered ADSs under the Registered Deposit Agreement, the issuance of the ADSs representing such deposited shares, the issuance of the Registered ADRs evidencing such Registered ADSs and the fees of the Registered Depositary, the Exchange Agent and, in the event that an information agent is appointed, such information agent, as may, in each case, be reasonably requested for use in connection with the Exchange Offer; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the Exchange Offer; (v) any registration or qualification of the Registered ADSs for offer and sale under the blue sky laws of the several states or any non-U.S. jurisdiction (including filing fees and the reasonable fees and expenses of counsel for the Dealer Manager relating to such registration and qualification); (vi) transportation and other expenses incurred by or on behalf of Bank representatives in connection with presentations to prospective participants in the Exchange Offer; (vii) fees and expenses incurred in connection with listing the Registered ADSs on the New York Stock Exchange; and (viii) all other costs and expenses incident to the performance by the Bank of its obligations hereunder and in connection with the Exchange Offer.
(i) The Bank will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Bank’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations.
(j) The Bank willCompany agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Act, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 4(d) hereto; provided that the prior written consent of Representatives shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such Free Writing Prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(k) The Company will furnish, upon request of an Underwriter, for a period of twelve months following two years from the Commencement Date, furnish to date of the Dealer Manager all Agreement (unless otherwise publicly available on the Commission’s XXXXX website or the Company’s website) (i) copies of any reports or other communications which the Company shall send to its shareholders or which the Company shall from time to time publish or publicly disseminate; (financial or otherii) generally made available to stockholders, and deliver to the Dealer Manager (i) as soon as they are available, copies of any all annual and other reports and financial statements furnished to or filed or submitted with the Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the Commission; and (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Bank Company is listed and listed, in each case, as soon as such reports, communications or documents become available.
(iil) such additional information concerning The Company will apply the business and financial condition net proceeds from the sale of the Bank as Securities in the Dealer Manager may from time to time reasonably request (such statements to be on a consolidated basis to manner set forth under the extent caption “Use of Proceeds” in the accounts of the Bank and its subsidiaries are consolidated in reports furnished to stockholders)Prospectus Supplement.
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