Agreements. The Company agrees with the several Underwriters that: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable. (b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule. (c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented. (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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request. (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. (f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering. (g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject. (i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. (i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date. (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.
Appears in 10 contracts
Samples: Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co), Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co), Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet entitled “Summary of Terms” for each series of Securities, substantially in the form of Schedule II hereto (the “Final Term Sheet Sheets”) and will file the Final Term Sheet Sheets pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term SheetSheets; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 8 contracts
Samples: Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co), Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co), Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co)
Agreements. The Company South Africa agrees with each of the several Underwriters thatof any Designated Securities:
(a) Prior To prepare the Final Prospectus, as amended and supplemented, as the case may be, in relation to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed applicable Designated Securities in a form approved by the Representatives with the Commission pursuant and to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of file such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b), (2) when, ; to make no further amendment or any supplement to the Registration Statement or Final Prospectus as amended or supplemented after such filing and prior to termination the Time of Delivery for such Securities which shall be disapproved by the Representatives for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; for so long as the delivery of a prospectus is required in connection with the offering or sale of such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the offering of the Securities, time when any amendment to the Registration Statement shall have has been filed or become effective, (3) of any request by the Commission becomes effective or its staff for any amendment of the Registration Statement, or for any supplement to the Final Base Prospectus Supplement or for any additional informationamended Base Prospectus has been filed with the Commission, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting order preventing or suspending the use of any prospectus relating to its use the Securities, of the suspension of the qualification of such Securities for offering or sale in any jurisdiction, of the institution initiation or threatening of any proceeding for that purpose and (5) any such purpose, or of any request by the Commission for the amending or supplementing of the receipt by Registration Statement or Base Prospectus or for additional information; and, in the Company event of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible order preventing or suspending the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required or suspending any such qualification, 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.obtain its withdrawal;
(eb) As soon as practicable, the Company will make generally available Promptly from time to its security holders and time 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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where take such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto action as the Representatives may reasonably request. The Company will pay request to qualify 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 applicable Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may designate, will maintain reasonably request and to comply with such qualifications laws so as to permit the continuance of sales and dealings therein in effect so such jurisdictions for as long as required for may be necessary to complete the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authoritysuch Designated Securities, Inc., in connection with its review of the offering; provided that in no event connection therewith South Africa shall the Company not be obligated required to qualify as a foreign corporation or similar entity or to do business file a general or unlimited consent to service of process in any jurisdiction where it is not now so qualified or to take any action that which would subject it to service general or unlimited services of process in suits, other than those arising out of the offering or sale of the Securities to taxation in any jurisdiction where it is not now so subject.jurisdiction;
(c) To (i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, 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 applicable Designated Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405405 under the Act) required to be filed by the Company South Africa with the Commission or retained by the Company under Rule 433433 under the Act unless the Representatives approve its use in writing prior to first use (each, other than a free writing prospectus containing the information contained in the Final Term Sheet“Permitted Free Writing Prospectus”); provided that the prior written consent of the parties Representatives hereto shall be deemed to have been given in respect of the Issuer Free Writing ProspectusesProspectus(es) listed on Schedule IV to the applicable Pricing Agreement, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (xii) it has treated and will treat, as the case may be, treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and Prospectus, (yiii) it has complied and will comply, as the case may be, comply with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Issuer Free Writing Prospectus, including in respect the requirements relating to concurrent or prior delivery of a prospectus, timely filing with the Commission, legending and record keeping.keeping and (iv) not take any action that would result in an Underwriter or the Issuer 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 the Underwriter otherwise would not have been required to file thereunder;
(d) To file the applicable Pricing Agreement, the form of which is attached as Annex I hereto, as an Issuer Free Writing Prospectus pursuant to Rule 433 under the Act prior to 5:30 p.m. (New York time) two business days after the execution of any such Pricing Agreement;
(e) If any part of the Disclosure Package is being used to solicit offers to buy the Designated Securities at a time when the Preliminary Prospectus is not yet available to prospective purchasers and any event shall occur as a result of which, in the opinion of internal or external counsel to the Underwriters or South Africa, it becomes necessary to amend or supplement the Disclosure Package in order to make the statements therein, in the light of the circumstances, not misleading, or to make the statements therein not conflict with the information contained in the Registration Statement then on file, or if it is necessary at any time to amend or supplement the Disclosure Package to comply with the Act, the Exchange Act or the rules and regulations of the Commission, promptly either (i) The Company prepare and file with the Commission (if required) and furnish to the Underwriters and any dealers an appropriate amendment or supplement to the Disclosure Package or (ii) prepare and file with the Commission an appropriate filing under the Exchange Act which shall be incorporated by reference in the Disclosure Package so that in the case of either (i) or (ii) above the Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or conflict with the Registration Statement then on file, or so that the Disclosure Package will comply with the Act, the Exchange Act and/or the rules and regulations of the Commission;
(f) To furnish the Underwriters with copies of the Preliminary Prospectus and Final Prospectus, as amended or supplemented, in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of a prospectus is required at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Preliminary Prospectus or Final Prospectus as then amended or supplemented would include an 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 when such Preliminary Prospectus or Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Base Prospectus, Preliminary Prospectus or Final Prospectus or to file under the Act or the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of such amended prospectus or a supplement to such prospectus which will correct such statement or omission or effect such compliance;
(g) To make generally available to its security holders in the United States and to the Representatives as soon as practicable, but in any event not later than twenty-four months after the effective date of the Registration Statement, a statement in the English language of revenues and expenditures of South Africa (which need not be audited) covering the first full fiscal year of South Africa commencing after the date hereof that will satisfy Section 11(a) of the Act and the rules and regulations of the Commission thereunder;
(h) During the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the later of (i) the termination of trading restrictions for such Designated Securities, as notified to South Africa by the Representatives and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose outside of South Africa of any debt securities of South Africa with a maturity of one year or more and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives;
(i) So long as any Securities are outstanding and unless otherwise publicly available, offerto furnish to the Representatives, sellupon request, contract to sellas soon as practicable after the determination thereof, pledge, or otherwise dispose of, copies of all reports and financial statements (or enter into any transaction in each case which is designed to, or might reasonably need not be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwiseaudited) 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 filed 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 in respect 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 commencing exchange on the date hereof and ending on the Closing Date.which Designated Securities are listed;
(j) The Company will So long as any Securities are outstanding, to obtain and maintain in full force and effect all governmental approvals (including but not takelimited to the Currency Transfer Guarantee) which may be necessary under the laws of South Africa for the performance of South Africa’s obligations under the Securities or for the validity or enforceability thereof or hereof and duly take all necessary and appropriate governmental and administrative action in South Africa in order to permit all payments to be made under the Securities in accordance with their terms; and
(k) To apply for listing of the Designated Securities on each securities exchange, directly or indirectlyif any, any action designed listed in the Pricing Agreement with respect to or that would constitute or that might reasonably be expected such Designated Securities, and to use its reasonable best efforts to cause or result ineach such listing to be approved and, if required in connection with any such listing, to register such Designated Securities under the Exchange Act or otherwise, stabilization or manipulation as soon as practicable after the applicable Time of the price of any security of the Company to facilitate the sale or resale of the SecuritiesDelivery.
Appears in 7 contracts
Samples: Pricing Agreement (Republic of South Africa), Pricing Agreement (Republic of South Africa), Pricing Agreement (Republic of South Africa)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424 or Rule 434 via the Electronic Data Gathering, Analysis and Retrieval System. The Company will advise the Representatives promptly (i) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424 or Rule 434, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including Act, except with respect to any such delivery requirement imposed upon an affiliate of the Company in circumstances where such requirement may be satisfied pursuant to Rule 172)connection with any secondary market sales, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 of the regulations under the Act) covering a twelve month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Act and Rule 158Registration Statement.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review legality of the offeringSecurities for purchase by institutional investors; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(if) The Company agrees that, unless it has obtained or obtains, as Until the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or sell, contract to sell, pledge, or otherwise dispose announce the offering 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) securities covered by the Company Registration Statement or by any affiliate of other registration statement filed under the Act; provided, however, the Company may, at any time, offer or sell or announce the offering of any person in privity with the Company or any affiliate of the Companysecurities (A) directly or indirectly, including the filing (or participation in the filing) of covered by a registration statement with the Commission in respect of, on Form S-8 or establish or increase (B) covered by a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any debt securities issued or guaranteed by registration statement on Form S-3 and pursuant to which the Company (other than the Securities) or publicly announce an intention to effect any such transaction issues securities for a period commencing on the date hereof and ending on the Closing Dateits Dividend Reinvestment Plan.
(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.
Appears in 7 contracts
Samples: Underwriting Agreement (Nationsbank Corp), Underwriting Agreement (Nationsbank Corp), Underwriting Agreement (Nationsbank Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet for each series of Securities each entitled “Summary of Terms” and each substantially in the form of Schedule II hereto (the “Final Term Sheet Sheets”) and will file the Final Term Sheet Sheets pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term SheetSheets; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 4 contracts
Samples: Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co), Underwriting Agreement (Edison International), Underwriting Agreement (Southern California Edison Co)
Agreements. (I) The Company agrees with the several Underwriters each Underwriter that:
(a) The Company will furnish to each Underwriter and to Counsel for the Underwriters, without charge, during the period referred to in paragraph (e) below, as many copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments and supplements thereto (to be delivered electronically) and the Final Prospectus as they may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(b) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the SecuritiesNotes, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bc) The Company will To prepare a final term sheet, in the Final Term Sheet form of Schedule I hereto, containing solely a description of final terms of the Notes and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under filing of the Act (including in circumstances where such requirement may be satisfied Final Prospectus pursuant to Rule 172424(b), any event occurs as a result of which the Final Prospectus Supplement as then 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 in the light of the circumstances under which they were made 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 if it shall be necessary to supplemented; (ii) amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplementomission; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(e) As soon If at any time prior to the earlier of (i) completion of the sale of the Notes by the Underwriters (as practicabledetermined by the Representatives) or (ii) six months from the date hereof, any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Prospectus (including any document incorporated by reference therein which was filed under the Exchange Act) to comply with the Exchange Act or the rules thereunder or other applicable law, including in connection with the use or delivery of the Final Prospectus, the Company will promptly notify the Representatives of the same and, subject to the requirements of paragraph (b) of this Section 4, will prepare and provide to the Representatives pursuant to paragraph (a) of this Section 4 an amendment or supplement which will correct such statement or omission or effect such compliance and, if such an amendment or supplement is required to be filed under the Exchange Act and is to be incorporated by reference in the Final Prospectus, will file such amendment or supplement with the Commission. The Representatives will promptly advise the Company, in writing, of the completion of the initial distribution of the Notes.
(f) The Company will, during the period when the Final Prospectus is required to be delivered under the Securities Act and during which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will make generally available to its security holders and to as soon as practicable, but not later than 90 days after the Representatives close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Act and Rule 158Registration Statement.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as cooperate with the Representatives may designate, will maintain such qualifications in effect so long as required and use its reasonable best efforts to permit the Notes to be eligible for the distribution of the Securities clearance and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsettlement through DTC.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, 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 Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 4 contracts
Samples: Underwriting Agreement (CSX Corp), Underwriting Agreement (CSX Corp), Underwriting Agreement (CSX Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior The Company will promptly advise the Underwriters (i) when any amendment to the termination Registration Statement shall have become effective, (ii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus or for any additional information, (iii) of the offering issuance by the Commission of any stop order suspending the effectiveness of the Securities, Registration Statement affecting the Offered Certificates or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished to you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably objectobject until after the period in which a prospectus is required to be delivered to purchasers of the Offered Certificates under the Act. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination 424 of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposeAct. The Company will use its 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to during the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Prospectus Delivery Period, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or rules under the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementAct, 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 or new registration statement which that will correct such statement or omission or an amendment that will effect such compliance; (3) compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, will use its best efforts to have any cause such amendment to of the Registration Statement or new registration statement declared to be made effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably requestpossible.
(ec) 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.
(f) Upon request, the The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by during the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Prospectus Delivery Period, as many copies of each the Preliminary Prospectus Supplement, FWP and the Final Prospectus Supplement and each Issuer Free Writing Prospectus any amendments and any amendment or supplement supplements thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gd) The Company will arrangefurnish such information, execute such instruments and take such action, if necessaryany, for as may be required to qualify the qualification of the Securities Offered Certificates for sale under the laws of such jurisdictions as the Representatives Underwriters may designate, designate and will maintain such qualifications qualification in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthorityOffered Certificates; provided, Inc.however, in connection with its review of the offering; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(ie) The Company agrees thatLoan Sellers shall share in the payment (allocated according to each Loan Seller's ratio of Mortgage Loans (the "Shared Expense Percentage") of all costs and expenses in connection with the transactions herein contemplated, unless it has obtained or obtainsincluding, as the case may bebut not limited to, the prior written consent fees and disbursements of counsel to the Company and the Purchasers; the fees, costs and expenses of the RepresentativesTrustee (to the extent permitted under the Pooling and Servicing Agreement, and (ii) each Underwriter, severally except to the extent that another party is obligated to pay such amounts thereunder); the fees and not jointly, agrees disbursements of accountants for the Company; the cost and expenses in connection with the Company thatpreparation, unless it has obtained or obtains, as printing and filing of any offering documents; the case may be, preparation and printing of this Agreement and the prior written consent delivery to the Purchasers of copies of the CompanyPrivate Placement Memorandum as each may reasonably request; the fees of the rating agencies rating the Privately Offered Certificates and the out-of-pocket expenses of each Purchaser incurred in connection with the purchase and sale of the Privately Offered Certificates; and any miscellaneous costs (the "Shared Expenses"). All Shared Expenses shall be paid or accrued on the Closing Date. For allocation purposes, it Shared Expenses shall include estimates of those expenses for which invoices have not been received. To the extent any Loan Seller has not made and will not make paid any offer relating Shared Expense prior to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433closing, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto such Loan Seller shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any reimbursed for such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing Shared Expense on the date hereof Closing Date. To the extent that Shared Expense invoices are presented after the Closing Date, such Shared Expenses shall be divided among the Loan Sellers in accordance with each Loan Seller's Shared Expense Percentage. Shared Expenses shall be reconciled and ending on approved for payment within thirty (30) days of the Closing Date.
(jf) The Company will not take, directly or indirectly, any action designed acknowledges and agrees that each Underwriter in providing investment banking services 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 in connection with the offering, including in acting pursuant to facilitate the sale terms of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and the Company does not intend such Underwriter to act in any capacity other than independent contractor, including as a fiduciary or resale in any other position of the Securitieshigher trust.
Appears in 3 contracts
Samples: Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2006-C1), Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2), Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior The Company will promptly advise the Underwriters (i) when any amendment to the termination Registration Statement shall have become effective, (ii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus or for any additional information, (iii) of the offering issuance by the Commission of any stop order suspending the effectiveness of the Securities, Registration Statement affecting the Offered Certificates or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished to you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably objectobject until after the period in which a prospectus is required to be delivered to purchasers of the Offered Certificates under the Act. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination 424 of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposeAct. The Company will use its 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to during the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), Prospectus Delivery Period any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Registration Statement or the Prospectus Supplement to comply with the Act or the Exchange Act or rules under the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementAct, 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 or new registration statement which that will correct such statement or omission or an amendment that will effect such compliance; (3) compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, will use its best efforts to have any cause such amendment to of the Registration Statement or new registration statement declared to be made effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably requestpossible.
(ec) 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.
(f) Upon request, the The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto that shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by during the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Prospectus Delivery Period, as many copies of each Preliminary the Base Prospectus Supplementand the Prospectus Supplement and any amendments and supplements thereto as the Underwriters may reasonably request. Prior to the date on which the Base Prospectus and the Prospectus Supplement are available, the Final Prospectus Supplement Company will furnish to the Underwriters and counsel for the Underwriters, without charge as many copies of the Preliminary FWP and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gd) The Company will arrangefurnish such information, execute such instruments and take such action, if necessaryany, for as may be required to qualify the qualification of the Securities Offered Certificates for sale under the laws of such jurisdictions as the Representatives Underwriters may designate, designate and will maintain such qualifications qualification in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthorityOffered Certificates; provided, Inc.however, in connection with its review of the offering; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(ie) Whether or not the transactions contemplated by this Agreement are consummated, the Company shall pay all costs and expenses in connection with the transactions herein contemplated, including, but not limited to, the fees and disbursements of its counsel and of counsel to the Underwriters, the fees and disbursements of accountants for the Company, the costs and expenses in connection with the qualification, or exemption from qualification, of the Offered Certificates under state securities or "blue sky" laws (including filing fees and reasonable fees and disbursements of counsel in connection therewith), the preparation of any blue sky survey, any determination of the eligibility of the Offered Certificates for investment by institutional investors and the preparation of any legal investment survey, all fees and expenses incurred in connection with the registration and delivery of the Offered Certificates under the Act, and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any Free Writing Prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivery of copies thereof to the Underwriters and dealers, in the quantities specified above, all costs and expenses related to the transfer and delivery of the Offered Certificates to the Underwriters, including any transfer or other taxes payable thereon, the cost of printing the Offered Certificates, the upfront costs and charges of any transfer agent, registrar or depository, the fees and expenses of the rating agencies incurred in connection with the issuance and sale of the Offered Certificates, the out-of-pocket expenses of each Underwriter incurred in connection with the purchase and sale of the Offered Certificates and 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 5(e).
(f) The Company acknowledges and agrees thatthat each Underwriter in providing investment banking services to the Company in connection with the offering, unless it including in acting pursuant to the terms of this Agreement, has obtained or obtains, acted and is acting as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally an independent contractor and not jointly, agrees with as a fiduciary and the Company thatdoes not intend such Underwriter to act in any capacity other than independent contractor, unless it has obtained including as a fiduciary or obtainsin any other position of higher trust.
(g) The Company will, as the case may bepursuant to reasonable procedures developed in good faith, the prior written consent retain copies of the Company, it has not made and will not make any offer relating to the Securities that would constitute an each Issuer Free Writing Prospectus or that would otherwise constitute any materials used in a “free writing prospectus” Road Show (as defined in Rule 405433 of the Act) that are required to be filed by the Company with the Commission or retained by the Company under Rule 433pursuant to the Act, other than a free writing prospectus containing to the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 extent not filed 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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, accordance with Rule 433 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 SecuritiesAct.
Appears in 3 contracts
Samples: Underwriting Agreement (COMM 2006-C8 Mortgage Trust), Underwriting Agreement (CD 2007-Cd5 Mortgage Trust), Underwriting Agreement (COMM 2007-C9 Mortgage Trust)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) 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 158158 under the Securities Act.
(fe) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, reasonably designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or would reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto, provided, however, that (1) the Company may grant options, issue and sell Common Stock and award restricted shares and/or restricted units of Common Stock pursuant to any Company equity incentive 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; and (3) the Company may issue securities to Technion Research and Development Foundation Limited in connection with the matter set forth in the Disclosure Package and Final Prospectus.
(h) The Company will not take, directly or indirectly, any action designed to or that would constitute or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings), with such fees and expenses of counsel contained in clauses (vi) and (vii) not to exceed $30,000 in the aggregate; (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Except as provided in this Section 5(i) or in Section 7 or Section 8 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsels and their own travel and lodging expenses.
(j) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) Free Writing Prospectus required to be filed by the Company with the Commission SEC or retained by the Company under Rule 433 under the Securities Act (“Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet”); provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the CommissionSEC, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 2 contracts
Samples: Underwriting Agreement (Eloxx Pharmaceuticals, Inc.), Underwriting Agreement (Eloxx Pharmaceuticals, Inc.)
Agreements. The Company Each of the Transaction Entities, jointly and severally, agrees with the several Underwriters Managers that:
(a) Prior During any period when delivery of a prospectus relating to the termination of Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 153 or 172 or similar rules) to be delivered under the offering of the SecuritiesSecurities Act, the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished you to the Managers a copy for your its review prior to filing and will not file any such proposed amendment or supplement to which you the Managers reasonably object. Subject to the foregoing sentence, the The Company will cause complete the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Managers, and will file such Prospectus Supplement on the Initial Filing Date with the Commission pursuant to, and by the time required by, the applicable paragraph of Rule 424(b) and will cause any additional supplement to the Prospectus to be completed, in a form approved by the Managers, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence satisfactory to the Representatives Managers of such timely filing. The Company will promptly advise the Representatives Managers (1i) when any supplement to the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination during any period when the delivery of a prospectus (whether physically or through compliance with Rule 153 or 172 or any similar rules) is required under the Securities Act in connection with the offering or sale of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Unless it determines to terminate this Agreement pursuant to Section 8(a), each of the Transaction Entities will use its best reasonable efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, during any period when the Final Term Sheet and will file delivery of a prospectus relating to the Final Term Sheet Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 433(d153 or 172 or similar rules) within to be delivered under the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development as a result of which the Disclosure Package (taken as a whole) would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (i) promptly notify promptly the Representatives Managers so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) subject to compliance with Section 4(a), amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the Managers in such quantities as the Managers may reasonably request.
(dc) If, at During any time period when the delivery of a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)153 or 172 or similar rules) to be delivered under the Securities Act , any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Managers of any such event; , and (2ii) unless it has terminated this Agreement pursuant to Section 8(a), (a) prepare and file with the Commission, subject to the second sentence of paragraph (acompliance with Section 4(a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3b) 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 Supplement; and (4c) supply any amended or supplemented Final Prospectus Supplement to you the Managers in such quantities as you the Managers may reasonably request.
(ed) As soon as reasonably practicable, the Company will make generally available to its security holders and to the Representatives Managers 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.
(fe) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, For so long as delivery of a prospectus by an Underwriter or dealer the Managers may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172153 or 172 or similar rules), the Company will furnish to the Managers and counsel for the Managers, without charge, as many copies of each Preliminary the Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Managers may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will use its commercially reasonable efforts to arrange, if necessary, for the qualification of the Securities Shares for sale under the securities or blue sky laws of such jurisdictions as the Representatives Managers may designate, reasonably designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringShares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Shares, in any jurisdiction where it is was not now previously so subject.
(ig) The Company agrees with the Managers that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the RepresentativesManagers, and (ii) each Underwriter, severally and not jointly, agrees the Managers agree with the Company that, unless it has they have or shall have obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and or they, as applicable, will not make any offer relating to the Securities Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III I hereto. Any such free writing prospectus consented to by the Representatives Managers or the Company Company, as applicable, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (xi) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (yii) it has complied and will comply, as the case may be, in all material respects, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) The During the period beginning on and including the first Business Day immediately prior to the date on which the Company has instructed any Manager to make sales of Shares under this Agreement through and including the first Business Day immediately following the related Settlement Date, the Company will not, without the prior written consent of the Representatives, not offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition 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 Act in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for a period commencing on without (i) giving the Managers at least five Business Days’ prior written notice specifying the nature of the proposed transaction and the date hereof of such proposed transaction and ending on (ii) the Closing Date.
Managers suspending acting under this Agreement for such period of time requested by the Company or as deemed appropriate by the Managers in light of the proposed transaction; provided, however, that the Company may (ji) The grant stock options, restricted stock or long-term incentive Units (“LTI Units”) to employees, consultants or directors pursuant to the terms of a plan in effect at that time, (ii) issue Common Stock pursuant to: (A) the exercise of stock options; or (B) the redemption of Units outstanding at that time, including Units issued upon conversion of LTI Units outstanding at that time; provided, that the Company will not take, directly notify the Managers promptly in writing upon receipt by the Company 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 Operating Partnership of any security notice of redemption from any affiliate of the Company or the Operating Partnership with respect to facilitate such Units (other than with respect to the sale or resale redemption of LTI Units); (iii) issue Common Stock pursuant to the Securities.Company’s dividend reinvestment plan (if any); (iv) issue Common Stock pursuant to the offers to sell, solicitation of offers to buy and sales of Shares pursuant to this Agreement; and (v)
Appears in 2 contracts
Samples: Equity Distribution Agreement (Douglas Emmett Inc), Equity Distribution Agreement (Douglas Emmett Inc)
Agreements. (I) The Company agrees with the several Underwriters each Underwriter that:
(a) The Company will furnish to each Underwriter and to Counsel for the Underwriters, without charge, during the period referred to in paragraph (e) below, as many copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments and supplements thereto (to be delivered electronically) and the Final Prospectus, as they may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(b) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives Representative (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bc) The Company will To prepare a final term sheet, in the Final Term Sheet form of Schedule I hereto, containing solely a description of final terms of the Securities and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under filing of the Act (including in circumstances where such requirement may be satisfied Final Prospectus pursuant to Rule 172424(b), any event occurs as a result of which the Final Prospectus Supplement as then 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 in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or if it shall be necessary to supplemented; (ii) amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplementomission; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(e) As soon If at any time prior to the earlier of (i) completion of the sale of the Securities by the Underwriters (as practicabledetermined by the Representative) or (ii) six months from the date hereof, any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Prospectus (including any document incorporated by reference therein which was filed under the Exchange Act) to comply with the Exchange Act or the rules thereunder or other applicable law, including in connection with the use or delivery of the Final Prospectus, the Company will promptly notify the Representative of the same and, subject to the requirements of paragraph (b) of this Section 4, will prepare and provide to the Representative pursuant to paragraph (a) of this Section 4 an amendment or supplement which will correct such statement or omission or effect such compliance and, if such an amendment or supplement is required to be filed under the Exchange Act and is to be incorporated by reference in the Final Prospectus, will file such amendment or supplement with the Commission. The Representative will promptly advise the Company, in writing, of the completion of the initial distribution of the Securities.
(f) The Company will, during the period when the Final Prospectus is required to be delivered under the Securities Act and during which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will make generally available to its security holders and to as soon as practicable, but not later than 90 days after the Representatives close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Act and Rule 158Registration Statement.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for cooperate with the qualification of Representative and use its reasonable best efforts to permit the Securities to be eligible for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities clearance and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsettlement through DTC.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the RepresentativesRepresentative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 2 contracts
Samples: Underwriting Agreement (CSX Transportation Inc), Underwriting Agreement (CSX Transportation Inc)
Agreements. The Company agrees with the several Underwriters, and in the case of paragraphs (g) and (h) of this Section 4, the Underwriters thatagree with the Company:
(a) If not already effective, the Company will use its best efforts to cause the Registration Statement, and any amendment thereof, to be declared effective by the Commission. Prior to the termination of the offering of the Offered Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless without the Company has furnished you a copy for your review prior to filing and will consent of the Managers, which consent shall not file any such proposed amendment or supplement to which you reasonably objectbe unreasonably withheld. Subject to the foregoing sentence, if filing of the Prospectus is required under Rule 424(b), the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives Managers of such timely filing. The Company will promptly advise the Representatives Managers (1i) when the Final Prospectus SupplementRegistration Statement, and any amendment or thereto shall have become effective, (ii) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2iii) when, prior to termination of the offering of the Offered Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the Company becoming aware of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Managers, an earnings statement or statements of the Company and its subsidiaries Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fc) Upon request, To furnish the Company will furnish to the Representatives and counsel for the UnderwritersManagers, without charge, two manually or facsimile signed copies of the Registration Statement (including exhibits thereto) thereto and to each other Underwriter a copy of the Registration Statement (without exhibits theretodocuments incorporated therein by reference) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by during the Act period mentioned in paragraph (including in circumstances where such requirement may be satisfied pursuant to Rule 172)e) below, as many copies of each Preliminary Prospectus Supplementthe Prospectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus any documents incorporated therein by reference, and any amendment or supplement supplements and amendments thereto as the Representatives Managers may reasonably request. The Company will pay agrees to timely file the expenses Prospectus pursuant to Rule 424 and to provide the Managers with evidence of printing such filing. The terms "supplement" and "amendment" or other production of "amend" as used in this Underwriting Agreement shall include all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be subsequently 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; provided that the prior written consent of the parties hereto shall be deemed pursuant to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 that are deemed to be incorporated by reference in respect 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 commencing on the date hereof and ending on the Closing DateProspectus.
(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.
Appears in 2 contracts
Samples: Underwriting Agreement (Worldcom Inc/ga//), Underwriting Agreement (Worldcom Inc/ga//)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the later of the last date on which a “settlement date,” if any, may occur, and the termination of the offering of the SecuritiesOffering, the Company will not file any amendment of or supplement to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus unless the Company has furnished you the Representative a copy for your its review prior to filing and will not file any such proposed amendment or supplement to which you the Representative reasonably objectobjects, unless otherwise required by the Act or the Exchange Act. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company will promptly advise the Representatives Underwriters (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the SecuritiesOffering, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the Company’s intention to file, or prepare any supplement or amendment to, the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus, (5) of the issuance by the Commission of any stop order or cease trade order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose purpose, (6) of the receipt of any comments or communications from the Commission or any other regulatory authority relating to the Prospectus or the Registration Statement, and (57) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or cease trade order or the suspension occurrence of any such qualification 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 of such stop order or cease trade order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(dProspectus with the Commission, promptly after the date of this Agreement, and in any event no later than 11:00 a.m. (Eastern Time) within the time required by such Ruleon [ ], 2016.
(c) If there If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Pricing Disclosure Package Package, as of the Applicable Time, would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (1) notify promptly the Representatives Underwriters so that any use of the Pricing Disclosure Package may cease until it is amended or supplemented, (2) subject to the first sentence of paragraph (a) of this Section 3, amend or supplement the Pricing Disclosure Package to correct such statement or omission, and (3) supply any amendment or supplement to the Underwriters in such quantities as they 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Underwriters of any such event; , (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 53, an amendment or supplement to the Registration Statement or Prospectus or a new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its security holders and to the Representatives an earnings statement or statements covering a period of at least 12 months beginning after the Effective Time of the Company and its subsidiaries Registration Statement (or, if later, the Effective Time of the any registration statement pursuant to Rule 462(b)) which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act. For the purpose of the preceding sentence, “Availability Date” means the day after the Company is required to file its Form 10-Q for the fourth fiscal quarter following the fiscal quarter that includes such Effective Time except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the day after the Company is required to file its Form 10-K for the end of such fourth fiscal quarter.
(f) Upon request, The Company will use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”.
(g) The Company will use its best efforts to maintain the listing of the Shares and the Warrant Shares offered hereby on the Exchange.
(h) The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, 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 (including in such circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each the Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and Prospectus, each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives any Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gi) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriters may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ij) The Company will not, without the prior written consent of the RepresentativesRepresentative, issue, offer, sell, contract to sell, pledge, or otherwise dispose of, (of or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) , directly or indirectly, including the filing (or participation in the filing) of a registration statement or prospectus 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 in Act, with respect ofto any other shares of Common Stock or any securities convertible into, any debt securities issued or guaranteed by the Company (other than the Securities) exercisable or exchangeable for, Common Stock, or publicly announce an intention to effect any such transaction transaction, for a period commencing on of 90 days after the date of this Agreement (the “Lock-Up Period”), except that the Company may: (i) file a registration statement or prospectus with the Commission in respect of the Securities and sell the Securities to the Underwriters pursuant to this Agreement, (ii) issue and sell Common Stock or grant performance shares, stock appreciation rights, options or other equity-based awards 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 proposed to be amended by the Company’s shareholders at the next annual meeting of shareholders, and (iii) issue Common Stock required to be issued during the Lock-Up Period pursuant to agreements in effect as of the Execution Time and issue Common Stock issuable upon the conversion of securities or the exercise of warrants or options outstanding at the Execution Time. Notwithstanding anything to the contrary in this paragraph, the Company shall be allowed to issue (i) Common Stock to employees pursuant to a shareholder approved stock option plan, incentive compensation plan, or employee stock purchase plan (each a “Plan” and collectively the “Plans”), (ii) issue shares of Series D Convertible Preferred Stock pursuant to any agreements in effect prior to the date hereof and ending (iii) issue Common Stock that it has previously agreed to issue as disclosed in any of the Registration Statement, the Pricing Disclosure Package and the Prospectus. Additionally, during the Lock-up Period, the Company may register (i) on Form S-8, any shares underlying any Plan, and (ii) on Form S-1 or Form S-3, for resale, (x) any shares underlying the Closing DateSeries D Convertible Preferred Stock or (y) any shares that the Company has agreed to register pursuant to a Registration Rights Agreement that has been disclosed in any of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(jk) The Company has, and 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 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.
(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 pay at the time of closing on the Closing Date all reasonable costs and expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing with the Commission of the Registration Statement (including financial statements and exhibits), the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment and supplement to any of the foregoing, (ii) the preparation, printing and delivery to the Underwriters of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates, as applicable, for any transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriter, (iv) the fees and disbursements of the Company’s legal counsel, accountants and other advisors, (v) the qualification of the Securities under applicable securities laws, and the NASDAQ, including filing fees and, the reasonable, actual and accountable fees and disbursements of legal counsel for the Underwriters in connection therewith and in connection with the preparation of any Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters of copies of the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus and all amendments or supplements to any of them and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the Underwriters of copies of the Blue Sky Survey and any supplement thereto or any filing with FINRA, (viii) the fees and expenses of any transfer agent or registrar for the Securities, (ix) the costs and expenses of any Testing-the-Waters Communications, (x) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, 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, travel and lodging expenses of the representatives and officers of the Company and any such consultants and (xi) reasonable out-of-pocket expenses of the Underwriters incurred in connection with the Offering, including the fees and disbursements of Underwriters’ counsel, in an aggregate amount not to exceed US$125,000.
(n) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and the Underwriters agree with the Company that, unless they have or shall have obtained the prior written consent of the Company, they have not made and will not make an offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; 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 IV hereto. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (1) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (2) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(o) The Company shall provide the Representative with a draft of any press release to be issued in connection with the Offering, and will provide the Representative and its counsel sufficient time to comment thereon and will issue such press release in a form reasonably acceptable to the Representative and its counsel.
Appears in 2 contracts
Samples: Underwriting Agreement (xG TECHNOLOGY, INC.), Underwriting Agreement (xG TECHNOLOGY, INC.)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any 10 amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.. 11
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III IV hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.. 12
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 2 contracts
Samples: Underwriting Agreement (Edison International), Underwriting Agreement (Edison International)
Agreements. The Company agrees Each of the Issuer and the Guarantors jointly and severally agree with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Issuer will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Issuer will promptly advise the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Issuer will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will Issuer shall prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in a form approved by you and shall file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(ciii) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made at such time, not misleading, the Company Issuer 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.
(div) If, at any time when a prospectus the Final 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly Issuer will (1) promptly notify the Representatives of any such event; (2) as soon as practicable, prepare and file with the Commission, subject to the second sentence of paragraph (ai) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 SupplementProspectus; and (4) promptly supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ev) As soon as practicable, the Company Issuer will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company WTW and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fvi) Upon request, the Company The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gvii) The Company Issuer and each Guarantor will arrange, if necessary, cooperate with you and counsel for the Underwriters in connection with the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, or taxation in any jurisdiction where it is not now so subject.
(iviii) The Company Issuer and the Guarantors 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 issued by any of them to facilitate the sale or resale of the Securities.
(ix) The Issuer agrees to pay the costs and expenses relating to the following matters: (1) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Free Writing Prospectus, each Preliminary Prospectus, the Final Prospectus, and each amendment or supplement to any of them; (2) 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 Free Writing Prospectus, each Preliminary Prospectus, the Final 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 preparation, printing, authentication, issuance and delivery of certificates for 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 offering of the Securities; (5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such registration and qualification); (7) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such filings); (8) transportation and other expenses incurred by or on behalf of the Issuer’s representatives in connection with presentations to prospective purchasers of the Securities; (9) the fees and expenses of the Issuer’s accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer and the Guarantors; (10) any fees charged by securities rating services for rating the Securities, (11) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (12) all expenses and application fees related to the listing of the Securities and trading on The International Stock Exchange located in Jersey or such other recognized stock exchange where the Issuer may list the Securities; and (13) all other costs and expenses incurred by the Issuer and the Guarantors that are incidental to the performance by the Issuer and the Guarantors of their respective obligations hereunder.
(x) Each of the Issuer and each Guarantor agrees that, unless it has obtained or obtainswill obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyIssuer, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Issuer with the Commission or retained by the Company Issuer under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 5(ii) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III IV hereto. Any such free writing prospectus consented to by the Representatives or the Company Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Issuer and each Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 2 contracts
Samples: Underwriting Agreement (Willis Towers Watson PLC), Underwriting Agreement (Willis Towers Watson PLC)
Agreements. The Company agrees with the several Underwriters each Agent that:
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Agreement or any Terms Agreement, the Company will not file any Prospectus Supplement relating to the Notes or any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has previously furnished you to each Agent a copy thereof for your its review prior to filing and will not file any such proposed amendment or supplement to which you any Agent reasonably objectobjects; provided that (i) 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), 14 or 15(d) of the Exchange Act, which filings the Company will cause to be timely filed with the Commission and copies of which filings the Company will cause to be delivered to each Agent promptly after being mailed for filing with the Commission and (ii) any Prospectus Supplement that merely sets forth the terms or a description of particular Notes shall only be reviewed and approved by the Agent or Agents offering such Notes. Subject to the foregoing sentence, the Company will promptly cause the Final each Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with or transmitted for filing to the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within under the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filingSecurities Act. The Company will promptly advise each Agent (a) of the Representatives (1) when the Final Prospectus Supplement, and filing of any amendment or supplement thereto, to the Basic Prospectus (except that the filing of an amendment or supplement to the Basic Prospectus that merely sets forth the terms or a description of particular Notes shall have been filed (if required) with only be notified to the Commission pursuant to Rule 424(bAgent or Agents offering such Notes), (2b) when, prior to termination of the offering filing and effectiveness of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, (3c) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Basic Prospectus Supplement or for any additional information, (4d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5e) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the notice of suspension of any such 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, the Agents shall not be obligated to solicit offers to purchase Notes so long as they are not reasonably satisfied with 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 practicabledocument.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, any event occurs or condition exists as a result of which (i) the Final Registration Statement or the Prospectus Supplement 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 under which they were made when the Prospectus, as then amended or supplemented, is delivered to a purchaser, not misleading, or if (ii) if, in the opinion of the Agents or in the opinion of the Company, it shall be is necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Registration Statement or the Prospectus, as then amended or supplemented, to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplementapplicable law, the Company will immediately notify each Agent by telephone (with confirmation in writing) to suspend solicitation of offers to purchase Notes and, if so notified by the Company, each Agent shall forthwith suspend such solicitation and cease using the Prospectus as then amended or supplemented. If the Company shall decide to amend or supplement the Registration Statement or Prospectus as then amended or supplemented, it shall so advise the Agents promptly will by telephone (1with confirmation in writing) notify the Representatives of such event; (2) and, at its expense, shall prepare and file cause to be filed promptly with the Commission, subject to the second sentence of paragraph (a) of this Section 5, Commission an amendment or supplement to the Registration Statement or new registration statement which Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; compliance and will supply such amended or supplemented Prospectus to each Agent in such quantities as such Agent may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to the Agents pursuant to paragraph (3f) use below and Sections 5(a), 5(b) and 5(c) in connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to each Agent, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, such Agent will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this Section 3(b), until the distribution of any Notes an Agent may own as principal has been completed if any event described above in this paragraph (b) occurs, the Company will, at its best efforts own expense, forthwith prepare and cause to have any be filed promptly with the Commission an amendment or supplement to the Registration Statement or new registration statement declared effective Prospectus as soon as practicable then amended or supplemented, satisfactory in order all respects to avoid any disruption in use of the Final Prospectus Supplement; such Agent, and (4) will supply any such amended or supplemented Final Prospectus Supplement to you such Agent in such quantities as you such Agent may reasonably request. If such amendment or supplement and any documents, certificates, opinions and letters furnished to each Agent pursuant to paragraph (f) 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 such Agent, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, such Agent may resume its resale of Notes as principal.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives an each Agent as soon as practicable earnings statement or statements of the Company and its subsidiaries which will that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering the twelve month periods beginning, in each case, not later than the first day of the Company fiscal quarter next following the "effective date" (as defined in Rule 158158 under the Securities Act) of the Registration Statement with respect to each sale of Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, each Agent without charge, charge two signed copies of the Registration Statement (and all amendments thereto, including exhibits theretoand any documents incorporated by reference therein, and during the period mentioned in Section 3(b) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)above, as many copies of each Preliminary Prospectus Supplementthe Prospectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus any documents incorporated by reference therein and any amendment or supplement supplements and amendments thereto as the Representatives each Agent may reasonably request. .
(e) The Company will qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agent shall reasonably request and will pay all reasonable expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the expenses determination of printing the eligibility of the Notes for investment under the laws of such jurisdictions as either Agent may designate, provided that the Company shall not be obligated to so qualify the Notes if such qualification requires it to file any general consent to service of process or other production to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(f) During the term of all this Agreement, the Company shall furnish to each Agent such relevant documents and certificates of officers of the Company relating to the offeringbusiness, operations and affairs of the Company, the Registration Statement, the Basic Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms Agreement and the performance by the Company of its obligations hereunder or thereunder as either Agent may from time to time reasonably request and shall notify each Agent promptly in writing of any downgrading or of its receipt of any notice of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate the direction of a possible change in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(9)(2) under the Securities Act.
(g) The Company will arrangewill, if necessarywhether or not any sale of Notes is consummated, for pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto; (ii) the preparation, issuance and delivery of the Notes; (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel; (iv) the qualification of the Securities for sale Notes under securities or Blue Sky laws in accordance with the laws provisions of such jurisdictions as Section 3(e), including filing fees and the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution reasonable fees and disbursements of the Securities Agents' counsel in connection therewith and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review the preparation of any Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each Agent in quantities as hereinabove stated of copies of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suitsRegistration Statement and all amendments thereto, other than those arising out and of the offering Basic Prospectus and any amendments or sale supplements thereto; (vi) the printing and delivery to each Agent of copies of the Securities in Indenture and any jurisdiction where it is not now so subject.
Blue Sky Memoranda; (ivii) The Company agrees that, unless it has obtained or obtains, as any fees charged by rating agencies for the case may be, the prior written consent rating of the Representatives, and Notes; (iiviii) each Underwriter, severally and not jointly, agrees any reasonable out-of-pocket expenses incurred by such Agent with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent approval of the Company, it has not made ; (ix) the fees and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectusesexpenses, if any, included in Schedule III hereto. Any such free writing prospectus consented incurred with respect to by any filing with the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that National Association of Securities Dealers, Inc. and (x) it has treated the reasonable fees and will treat, as disbursements of counsel for 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, Agents incurred in connection with the requirements offering and sale of Rules 164 and 433 applicable to any Permitted Free Writing Prospectusthe Notes, including in respect of timely filing with the Commission, legending and record keepingany opinions to be rendered by such counsel hereunder.
(ih) The Between the date of any agreement by an Agent to purchase Notes as principal and the Settlement Date with respect to such agreement, the Company will not, without the prior written consent of the Representativeseach Agent, offer, sell, contract to sell, pledge, sell or otherwise dispose ofof any debt securities of the Company substantially similar to the Notes (other than (i) the Notes that are to be sold pursuant to such agreement, (or enter into any transaction which is designed to, or might reasonably ii) Notes previously agreed to be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) sold by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Companyand (iii) directly or indirectly, including the filing (or participation commercial paper issued in the filing) ordinary course of a registration statement with the Commission business), except as may otherwise be provided 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 in respect 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 commencing on the date hereof and ending on the Closing Dateagreement.
(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.
Appears in 2 contracts
Samples: Distribution Agreement (Gatx Capital Corp), Distribution Agreement (Gatx Capital Corp)
Agreements. The Company agrees Vanguard Parties agree with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesUnits, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you the Representatives a copy for your their review prior to filing and will not file any such proposed amendment or supplement to which you the Representatives reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2ii) when, prior to termination of the offering of the SecuritiesUnits, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Units for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, 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 Underwriters in such quantities as the Representatives may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities Units 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 Supplement Prospectus, as then supplemented supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you the Underwriters in such quantities as you the Representatives may reasonably request.
(ed) 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.
(fe) Upon request, the The Company will furnish (or otherwise make available) to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities Units for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringUnits; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where in which it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Units, in any jurisdiction where in which it is not now so subject.
(ig) The Company agrees that, unless it has obtained or obtains, as the case may be, without the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, without the prior written consent of the Company, it has not made and will not make any offer relating to the Securities Units that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretohereto and 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 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.
(ih) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including file (or participate in the filing (or participation in the filingof) 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 in with respect ofto, any debt securities issued or guaranteed by the Company (Common Units other than the Securities) Units or any securities convertible into, or exercisable or exchangeable for, Common Units, or publicly announce an intention to effect any such transaction transaction, for a period commencing of 60 days after the date of this Agreement (such 60-day period, the “Lock-Up Period”); provided, however, that the Company may (A) issue and sell Common Units and Class B Units pursuant to, and file a registration statement on Form S-8 relating to, any employee benefit plan of the Company (including the Company’s long-term incentive plan and Class B Unit plan) in effect at the Execution Time, (B) issue and sell Common Units in a private transaction exempt from registration under the Act; provided, however, that any purchasers in such transaction must execute and deliver to the Representatives a lock-up letter agreement in the form of Exhibit A hereto, and (C) issue Common Units 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 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 Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the date hereof and ending last day of the Lock-Up Period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the Closing Dateissuance of the earnings release or the occurrence of the material news or material event. The Company will provide the Representatives and any co-managers and each individual subject to the Lock-Up Period pursuant to the lock-up letters described in Section 6(l) hereof with prior notice of any such announcement that gives rise to an extension of the Lock-Up Period.
(ji) The Company None of the Vanguard Parties will not take, directly or indirectly, any action that would constitute, or that is designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesUnits.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Units; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Units, including any stamp or transfer taxes in connection with the original issuance and sale of the Units; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Units; (v) the registration of the Units under the Exchange Act and the listing of the Units on the NYSE; (vi) any registration or qualification of the Units for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (formerly known as 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 Company representatives in connection with presentations to prospective purchasers of the Units; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (Vanguard Natural Resources, LLC), Underwriting Agreement (Vanguard Natural Resources, LLC)
Agreements. The Company agrees with the several Underwriters that:
(a) a. Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424 or Rule 434. The Company will advise the Underwriters promptly (i) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424 or Rule 434, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Notes shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) b. If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which which, in the opinion of counsel to the Company, the Final Prospectus Supplement as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if if, in the opinion of counsel to the Company, it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As c. The Company, as soon as practicable, the Company will make generally available to its security holders and to the Representatives an Underwriters a consolidated earnings statement or statements of the Company and its subsidiaries which will satisfy that satisfies the provisions of Section 11(a) of the Act and Rule 158158 thereunder.
(f) Upon request, the d. The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary any Supplemented Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) e. The Company will arrange, if necessary, arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives Underwriters may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Notes and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review legality of the offeringNotes for purchase by institutional investors; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(j) f. The Company will not voluntarily claim, and will resist actively any attempts to claim, the benefit of any usury laws against the holders of the Notes.
g. Neither the Company nor any of its subsidiaries will take, directly or indirectly, any action designed to or that would constitute to, or that might reasonably be expected to to, cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the SecuritiesNotes. Until the business day following the Closing Date, the Company will not, without the consent of the Underwriters, offer or sell, or announce the offering of, any securities (other than the Notes) covered by the Registration Statement or by any other registration statement filed under the Act.
Appears in 2 contracts
Samples: Underwriting Agreement (Money Store Inc /Nj), Underwriting Agreement (Money Store Inc /Nj)
Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementFinal Prospectus) to the Base Basic Prospectus unless the Company has furnished you a copy for your prompt review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 the Representatives Repre sentatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings earning statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or any Agreement Among Underwriters, this Agreement, the Indenture, the Blue Sky Memorandum and any other production of all documents relating to in connection with the offering, purchase, sale and delivery of the Securities.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthoritySecurities, Inc., in connection with its review of the offering; provided that in no event shall connection therewith, the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified as a foreign corporation or to take any action that would subject it file a general consent to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectjurisdiction.
(if) The Company agrees that, unless it has obtained or obtains, as Until the case may bebusiness date set forth on Schedule I hereto, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, sell or contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including or announce the filing (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 in respect 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 commencing on ), which mature more than one year after the date hereof and ending on the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed which are substantively similar 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.
Appears in 2 contracts
Samples: Underwriting Agreement (Carnival Corp), Underwriting Agreement (Carnival Corp)
Agreements. (i) The Company agrees with the several Underwriters and each Selling Stockholder that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus Supplement or any Preliminary Prospectus SupplementRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished you and the Selling Stockholders a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you or either of the Selling Stockholders reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Selling Stockholders and the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Selling Stockholders and the Representatives of such timely filing. The Company will promptly advise the Selling Stockholders and the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification suspension or objection and, if issuedupon such issuance, occurrence or objection to the use of the Registration Statement, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or notice of or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the Final Term Sheet and will file filing of the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made at such time not misleading, the Company will (1) notify promptly the Selling Stockholders and the Representatives 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 the Selling Stockholders or you in such quantities as they or you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Selling Stockholders and 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 or new registration statement which will correct such statement or omission or effect such compliance; and (3) use its best efforts to have supply any amendment supplemented Prospectus to the Registration Statement Selling Stockholders or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as they or you may reasonably request.
(ed) As soon as reasonably 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.
(fe) Upon request, the The Company will furnish to the Representatives Representatives, each Selling Stockholder and counsel for the UnderwritersUnderwriters and each of the Selling Stockholder, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) by the Act, as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives and each of the Selling Stockholders may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company or the Selling Stockholders be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to taxation in excess of a nominal amount or to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ig) The Company will not, without the prior written consent of the Representativeseach of Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, any debt shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction transaction, for a period commencing of 90 days after the date of the Underwriting Agreement (the “Restricted Period”); provided, however, that the Company may issue and sell Common Stock or securities convertible into or exercisable or exchangeable for, shares of Common Stock in the offering contemplated hereby, pursuant to any employee equity incentive plan, stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company as contemplated and described in the Disclosure Package 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 (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 Company occurs or (2) 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 date hereof last day of the Restricted Period, unless otherwise waived by each of Citigroup Global Markets Inc. and ending Credit Suisse Securities (USA) LLC in its sole discretion, then the foregoing restrictions shall continue to apply until the expiration of the 18-day period beginning on the Closing Dateissuance of the earnings release or the occurrence of the material news or material event. The Company will provide the Representatives and any co-managers and each individual subject to the restricted period pursuant to the lockup letters described in Section 6(n) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(jh) Prior to the termination of the offering of the Securities, the Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes Oxley Act.
(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 agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus, and each Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested by the Representatives for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the 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 Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Selling Stockholders; and (x) all other costs and expenses incident to the performance by the Company and the Selling Stockholders of their obligations hereunder.
(k) The Company agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company or such Underwriter with the Commission or retained by the Company or such Underwriter 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 III hereto and 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 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.
(ii) Each Selling Stockholder agrees with the several Underwriters that:
(a) 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.
(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 prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Disclosure Package, Registration Statement, Prospectus or any Free Writing Prospectus or any amendment or supplement thereto relating to such Selling Stockholder.
(c) Such Selling Stockholder represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (Spansion Inc.), Underwriting Agreement (Advanced Micro Devices Inc)
Agreements. The Company agrees with the several U.S. Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesU.S. Shares, the Company will not file any amendment of the Registration Statement or the ADS Registration Statement or supplement (including to the Final U.S. Prospectus Supplement or any Preliminary Prospectus SupplementRule 462(b) to the Base Prospectus Registration Statement unless the Company has furnished you the U.S. Underwriters a copy for your their review prior to filing and will not file any such proposed amendment or supplement to which you the U.S. Representatives reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementU.S. Prospectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the U.S. Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the U.S. Representatives of such timely filing. The Company will promptly advise the U.S. Representatives (1i) when the Final Prospectus SupplementU.S. Prospectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or the ADS Registration Statement shall have been filed with the Commission, (2ii) when, prior to termination of the offering of the SecuritiesU.S. Shares, any amendment to the Registration Statement or the ADS Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, the ADS Registration Statement or any Rule 462(b) Registration Statement, or for any supplement to the Final U.S. Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or of any notice objecting to its their use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities U.S. Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification suspension or objection to the use of the Registration Statement or ADS Registration Statement and, if issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or the ADS Registration Statement or a new registration statement and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the Final Term Sheet and will file filing of the Final Term Sheet U.S. Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (i) notify promptly 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 the U.S. Underwriters in such quantities as they may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities U.S. 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 either of the Final U.S. Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement either of the Final U.S. Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify the U.S. Representatives of any such event; (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4iii) supply any amended or supplemented Final U.S. Prospectus Supplement to you the U.S. Underwriters in such quantities as you they may reasonably request.
(ed) 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.
(fe) Upon request, the 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 ADS Registration Statement (including exhibits thereto) and to each other U.S. Underwriter a copy of the Registration Statement and the ADS Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an a U.S. Underwriter or dealer may be required by the Act (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 SupplementProspectus, the Final U.S. Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or 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.
(gf) The Company will arrange, if necessary, for the qualification of the Securities U.S. Shares for sale under the laws of such jurisdictions as the U.S. Representatives may designate, reasonably designate and will use commercially reasonable efforts to maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringU.S. Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities U.S. Shares, in any jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement (other than any S-8 Registration Statement relating to the Company’s equity incentive plans) 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 Ordinary Shares or ADSs or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares or ADSs; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreements, provided, however, that the Company may (i) issue and sell Ordinary Shares pursuant to any employee stock option plan, non-employee incentive warrants plan, free shares plan, employee warrants (BSPCE), stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) issue Ordinary Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, and (iii) offer, issue and sell shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock in connection with any acquisition or strategic investment (including any joint venture, strategic alliance or partnership) as long as (x) the aggregate number of shares of Common Stock issued or issuable does not exceed 5% of the number of shares of Common Stock outstanding immediately after the issuance and sale of the U.S. Shares, and (y) each recipient of any such shares or other securities agrees to restrictions on the resale of securities that are consistent with the lock-up letters described in Section 6(o) hereof for the remainder of the 90-day restricted period.
(h) If Citigroup Global Markets Inc., in its sole discretion, agrees to release or waive the restrictions set forth in a lock-up letter described in Section 6(o) 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.
(i) The Company will not take, directly or indirectly, without giving effect to the actions of the U.S. Underwriters, any action designed to or that would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Ordinary Shares or the ADSs.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, each Prospectus, each Issuer Free Writing Prospectus, the ADS Registration Statement, and each amendment or supplement to any of them; (ii) the preparation of the Deposit Agreement, the deposit of the Underlying Shares under the Deposit Agreement, the issuance thereunder of ADSs representing such deposited Underlying Shares, the issuance (if applicable) of ADRs evidencing such ADSs and the fees of the Depositary; (iii) 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, each Prospectus, the ADS Registration Statement, 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 U.S. Shares; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the U.S. Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the U.S. Shares; (v) the printing (or reproduction) and delivery of the Master Agreement, including these U.S. Underwriting Terms, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the U.S. Shares; (vi) the registration of the U.S. Shares under the Exchange Act and the listing of the ADSs on the NASDAQ Stock Market; (vii) any registration or qualification of the U.S. Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the U.S. Underwriters relating to such registration and qualification); (viii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the U.S. Underwriters relating to such filings); provided, however, that the reasonable fees and expenses of counsel for the U.S. Underwriters related to subclauses (vii) and (viii) of this Section 5(j) shall not exceed $15,000; (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the U.S. Shares (but specifically excluding the travel and lodging expenses of the U.S. Representatives); provided, however, that the Company shall be responsible for half of the cost and expenses of any aircraft chartered in connection with the “road show” for the U.S. Shares and the U.S. Underwriters shall be responsible for the balance; (x) 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 (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the U.S. Representatives, and (ii) each U.S. Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall 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 U.S. Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto3 to the Master Agreement or any electronic roadshow. Any such free writing prospectus consented to by the U.S. Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(il) The Company will not, without notify promptly the U.S. Representatives if the Company ceases to be an Emerging Growth Company at any time prior written consent to the later of (a) completion of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate distribution 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 U.S. Shares within the meaning of Section 16 the Act and (b) completion of the Exchange Act 90-day restricted period referred to in respect of, any debt securities issued or guaranteed by the Company (other than the SecuritiesSection 5(g) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Datehereof.
(jm) The 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 not take, directly or indirectly, any action designed to or (i) notify promptly the U.S. Representatives so that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation use of the price of 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 security of amendment or supplement to the Company to facilitate the sale or resale of the SecuritiesU.S. Representatives in such quantities as may be reasonably requested.
Appears in 2 contracts
Samples: Master Underwriting Agreement, Master Underwriting Agreement (DBV Technologies S.A.)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior The Company will promptly advise the Underwriters (i) when any amendment to the termination Registration Statement shall have become effective, (ii) of any request by the Commission for any amendment to the Registration Statement or the Prospectus or for any additional information, (iii) of the offering issuance by the Commission of any stop order suspending the effectiveness of the Securities, Registration Statement affecting the Offered Certificates or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished to you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably objectobject until after the period in which a prospectus is required to be delivered to purchasers of the Offered Certificates under the Act. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination 424 of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposeAct. The Company will use its 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to during the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), Prospectus Delivery Period any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or rules under the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementAct, 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 or new registration statement which that will correct such statement or omission or an amendment that will effect such compliance; (3) compliance and, if such amendment or supplement is required to be contained in a post-effective amendment to the Registration Statement, will use its best efforts to have any cause such amendment to of the Registration Statement or new registration statement declared to be made effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably requestpossible.
(ec) 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.
(f) Upon request, the The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by during the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Prospectus Delivery Period, as many copies of each Preliminary the Base Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus any amendments and any amendment or supplement supplements thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gd) The Company will arrangefurnish such information, execute such instruments and take such action, if necessaryany, for as may be required to qualify the qualification of the Securities Offered Certificates for sale under the laws of such jurisdictions as the Representatives Underwriters may designate, designate and will maintain such qualifications qualification in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthorityOffered Certificates; provided, Inc.however, in connection with its review of the offering; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(ie) The Company agrees that, unless it has obtained Whether or obtains, as not the case may betransactions contemplated by this Agreement are consummated, the prior written consent of the Representatives, Company shall pay all costs and (ii) each Underwriter, severally and not jointly, agrees expenses in connection with the Company thattransactions herein contemplated, unless it has obtained or obtainsincluding, as the case may bebut not limited to, the prior written consent fees and disbursements of its counsel and of counsel to the Underwriters, the fees and disbursements of accountants for the Company, it has not made the costs and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined expenses in Rule 405) required to be filed by the Company connection with the Commission qualification, or retained by the Company under Rule 433exemption from qualification, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given Offered Certificates under state securities or "blue sky" laws (including filing fees and reasonable fees and disbursements of counsel in respect connection therewith), the preparation of any blue sky survey, any determination of the Free Writing Prospectuseseligibility of the Offered Certificates for investment by institutional investors and the preparation of any legal investment survey, if any, included all fees and expenses incurred in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, connection with the requirements registration and delivery of Rules 164 the Offered Certificates under the Act, and 433 applicable to all other fees or expenses in connection with the preparation and filing of the Registration Statement, any Permitted Free Writing Prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivery of copies thereof to the Underwriters and dealers, in respect the quantities specified above, all costs and expenses related to the transfer and delivery of timely filing the Offered Certificates to the Underwriters, including any transfer or other taxes payable thereon, the cost of printing the Offered Certificates, the upfront costs and charges of any transfer agent, registrar or depository, the fees and expenses of the rating agencies incurred in connection with the Commissionissuance and sale of the Offered Certificates, legending the out-of-pocket expenses of each Underwriter incurred in connection with the purchase and record keepingsale of the Offered Certificates and 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 5(g).
(if) The Company will not, without the prior written consent of the Representatives, offer, sell, contract acknowledges and agrees that each Underwriter in providing investment banking services 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 in connection with the offering, including in acting pursuant to the terms of this Agreement, has acted and is acting as an independent contractor and not as a fiduciary and the Company or does not intend such Underwriter to act in any person in privity with the Company or any affiliate of the Company) directly or indirectlycapacity other than independent contractor, including the filing (as a fiduciary or participation in the filing) any other position 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 in respect 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 commencing on the date hereof and ending on the Closing Datehigher trust.
(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.
Appears in 2 contracts
Samples: Underwriting Agreement (Deutsche Mortgage & Asset Receiving Corp), Underwriting Agreement (Deutsche Mortgage & Asset Receiving Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesSecurities (and for the purposes of this Section 5(a), the Representatives will, upon the request of the Company, confirm whether the offering of Securities has been terminated), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule III hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal 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 Free Writing Prospectuses, if any, Prospectuses included in Schedule Schedules II and III heretohereto and 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 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, 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 commencing transaction, until the Business Day set forth on the date hereof and ending on the Closing DateSchedule 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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 2 contracts
Samples: Underwriting Agreement (FMC Corp), Underwriting Agreement (FMC Corp)
Agreements. (I) The Company agrees with the several Underwriters each Underwriter that:
(a) The Company will furnish to each Underwriter and to Counsel for the Underwriters, without charge, during the period referred to in paragraph (e) below, as many copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments and supplements thereto (to be delivered electronically) and the Final Prospectus as they may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(b) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the SecuritiesNotes, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bc) The Company will To prepare a final term sheet, in the Final Term Sheet form of Schedule I hereto, containing solely a description of final terms of the Notes and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under filing of the Act (including in circumstances where such requirement may be satisfied Final Prospectus pursuant to Rule 172424(b), any event occurs as a result of which the Final Prospectus Supplement as then 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 in the light of the circumstances under which they were made 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 if it shall be necessary to supplemented; (ii) amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplementomission; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(e) As soon If at any time prior to the earlier of (i) completion of the sale of the Notes by the Underwriters (as practicabledetermined by the Representatives) or (ii) six months from the date hereof, any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Prospectus (including any document incorporated by reference therein which was filed under the Exchange Act) to comply with the Exchange Act or the rules thereunder or other applicable law, including in connection with the use or delivery of the Final Prospectus, the Company will promptly notify the Representatives of the same and, subject to the requirements of paragraph (b) of this Section 4, will prepare and provide to the Representatives pursuant to paragraph (a) of this Section 4 an amendment or supplement which will correct such statement or omission or effect such compliance and, if such an amendment or supplement is required to be filed under the Exchange Act and is to be incorporated by reference in the Final Prospectus, will file such amendment or supplement with the Commission. The Representatives will promptly advise the Company, in writing, of the completion of the initial distribution of the Notes.
(f) The Company will, during the period when the Final Prospectus is required to be delivered under the Securities Act and during which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will make generally available to its security holders and to as soon as practicable, but not later than 90 days after the Representatives close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Act and Rule 158Registration Statement.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as cooperate with the Representatives may designate, will maintain such qualifications in effect so long as required and use its reasonable best efforts to permit the Notes to be eligible for the distribution of the Securities clearance and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsettlement through DTC.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, 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 Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(II) Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the Notes, severally represents to and agrees with the Company that it and each such affiliate:
(a) in relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Notes described in the Preliminary Prospectus to the public in that Relevant Member State other than:
(i) The Company will notto any legal entity which is a “qualified investor” as defined in the Prospectus Directive;
(ii) to fewer than 100 or, without if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Representativesunderwriters for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive, 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 provided that no such offer of Notes shall require the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) publication by the Company or any affiliate underwriter of a prospectus pursuant to Article 3 of the Company Prospectus Directive, or any person in privity with the Company or any affiliate a supplement to a prospectus pursuant to Article 16 of the Company) directly Prospectus Directive. For purposes of this provision, the expression an “offer of Notes to the public” in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or indirectlysubscribe for the Notes, as the expression may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the filing (or participation 2010 PD Amending Directive, to the extent implemented in the filingRelevant Member State) of a registration statement with and includes any relevant implementing measure in each Relevant Member State. The expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(b) will only distribute the Commission Preliminary Prospectus to, and will only direct the Preliminary Prospectus at, persons in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position the United Kingdom that are qualified investors within the meaning of Section 16 Article 2(1)(e) of the Exchange Act in respect of, any debt securities issued or guaranteed by Prospectus Directive that are also (i) investment professionals falling within Article 19(5) of the Company Financial Services and Markets Xxx 0000 (other than Financial Promotion) Order 2005 (the Securities“Order”) or publicly announce an intention (ii) high net worth entities, and other persons to effect any whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (each such transaction for person being referred to as a period commencing on the date hereof and ending on the Closing Date.“relevant person”); and
(jc) The Company Notes offered in the Preliminary Prospectus have not been, and will not takebe, registered under the Financial Instruments and Exchange Law of Japan. The Notes have not been offered or sold and will not be offered or sold, directly or indirectly, any action designed in Japan or to or that would constitute for the account of any resident of Japan (which term, as used in this paragraph means any person resident in Japan, including any corporation or that might reasonably be expected to cause or result in, other entity organized under the Exchange Act or otherwiselaws of Japan), stabilization or manipulation except (i) pursuant to an exemption from the registration requirements of the price Financial Instruments and Exchange Law and (ii) in compliance with any other applicable requirements of any security of the Company to facilitate the sale or resale of the SecuritiesJapanese law.
Appears in 2 contracts
Samples: Underwriting Agreement (CSX Corp), Underwriting Agreement (CSX Corp)
Agreements. The Company agrees Operating Partnership and the Guarantor agree with the several Underwriters each Agent that:
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Distribution Agreement or any Terms Agreement, the Company Operating Partnership and the Guarantor will not file any Prospectus Supplement relating to the Notes or any amendment of to the Registration Statement or supplement (including unless the Final Prospectus Supplement or any Preliminary Prospectus Supplement) Operating Partnership and the Guarantor have previously furnished to the Base Prospectus unless the Company has furnished you a copy Agents copies thereof for your their review prior to filing and will not file any such proposed supplement or amendment or supplement to which you the Agents reasonably object; provided, however, that (i) the foregoing requirement shall not apply to the filing of documents which are incorporated by reference in the Prospectus and (ii) any Prospectus Supplement that merely sets forth the terms or a description of particular Notes shall only be reviewed and approved by the Agent or Agents offering such Notes. Subject to the foregoing sentence, the Company Operating Partnership and the Guarantor will promptly cause each Prospectus Supplement to be filed with or transmitted for filing to the Final Prospectus Supplement, properly completed, Commission in accordance with Rule 424(b) under the Securities Act. The Operating Partnership and the Guarantor will promptly advise the Agents (A) of the filing of any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph Basic Prospectus (except that notice of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives filing of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any an amendment or supplement thereto, to the Basic Prospectus that merely sets forth the terms or a description of particular Notes shall have been filed (if required) with only be given to the Commission pursuant Agent or Agents offering such Notes and the Operating Partnership and the Guarantor shall not be required to Rule 424(bso advise the Agents of the filing of documents which are incorporated by reference therein), (2B) when, prior to termination of the offering filing and effectiveness of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, except for the filing of documents which are incorporated by reference therein, (3C) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Basic Prospectus Supplement or for any additional information, (4D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company Operating Partnership and the Guarantor will use its best efforts to prevent the issuance of any such stop order or the notice of suspension of any such 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, no Agent shall be obligated to solicit offers to purchase Notes so long as it is not reasonably satisfied with 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 practicabledocument.
(b) The Company will prepare If, at any time when a prospectus relating to the Final Term Sheet and will file Notes is required to be delivered under the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development condition exists as a result of which the Disclosure Package Prospectus, as then amended or supplemented, would include an untrue statement of a material fact fact, or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus, as then prevailingamended or supplemented, is delivered to a purchaser, not misleading, or if, in the Company will notify promptly the Representatives so that any use opinion of the Disclosure Package may cease until Agents or in the opinion of the Operating Partnership and the Guarantor, it is necessary at any time to amend or supplement the Prospectus, as then amended or supplemented.
, to comply with applicable law, the Operating Partnership and the Guarantor will immediately notify the Agents by telephone (dwith confirmation in writing) Ifto suspend solicitation of offers to purchase Notes and, at any time when a prospectus relating to if so notified by the Securities is required to be delivered under Operating Partnership and the Act (including in circumstances where Guarantor, the Agents shall forthwith suspend such requirement may be satisfied pursuant to Rule 172)solicitation and cease using the Prospectus, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact amended or omit to state any material fact necessary to make supplemented. If the statements therein in Operating Partnership and the light of the circumstances under which they were made not misleading, or if it Guarantor shall be necessary decide to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Registration Statement or Prospectus, as then amended or supplemented, it shall so advise the Agents promptly by telephone (with confirmation in writing) and, at its expense, shall prepare and cause to comply be filed promptly with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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, Commission an amendment or supplement to the Registration Statement or new registration statement which Prospectus, as then amended or supplemented, satisfactory in all respects to the Agents, that will correct such statement or omission or effect such compliance; (3compliance and will supply such amended or supplemented Prospectus to the Agents in such quantities as they may reasonably request. If the documents, certificates, opinions and letters furnished to the Agents pursuant to Sections 3(f), 5(a), 5(b) use its best efforts and 5(c) hereof in connection with the preparation and filing of such amendment or supplement are satisfactory in all respects to have the Agents, upon the filing with the Commission of such amendment or supplement to the Prospectus or upon the effectiveness of an amendment to the Registration Statement, the Agents will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this paragraph, until the distribution of any Notes an Agent may own as principal has been completed, if any event described above in this paragraph occurs, the Operating Partnership and the Guarantor will, at their own expense, forthwith prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or new registration statement declared effective Prospectus, as soon as practicable then amended or supplemented, satisfactory in order all respects to avoid any disruption in use of such Agent and the Final Prospectus Supplement; Operating Partnership and (4) the Guarantor, will supply any such amended or supplemented Final Prospectus Supplement to you such Agent in such quantities as you it may reasonably requestrequest and shall furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b) and 5(c) hereof such documents, certificates, opinions and letters specified therein in connection with the preparation and filing of such amendment or supplement.
(ec) As soon as practicable, Each of the Company Operating Partnership and the Guarantor will make generally available to its respective security holders and to the Representatives an earnings statement or Agents as soon as practicable earning statements of the Company and its subsidiaries which will that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering twelve month periods beginning, in each case, not later than the first day of the Operating Partnership's and the Guarantor's respective fiscal quarter next following the "effective date" (as defined in Rule 158158 under the Securities Act) of the Registration Statement with respect to each sale of Notes. If such fiscal quarter is the last fiscal quarter of the Operating Partnership's and the Guarantor's respective fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
(d) The Operating Partnership and the Guarantor will furnish to each Agent, without charge, 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 such Agent may reasonably request.
(e) The Operating Partnership and the Guarantor will endeavor to qualify the Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents shall reasonably request and to maintain such qualifications for as long as the Agents shall reasonably request.
(f) Upon request, The Operating Partnership and the Company will Guarantor shall furnish to the Representatives Agents such relevant documents and counsel for the Underwriters, without charge, signed copies certificates of officers of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringbusiness, operations and affairs of the Company, the Registration Statement, the Basic Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Distribution Agreement, the Administrative Procedures, any Terms Agreement and the performance by the Company of its obligations hereunder or thereunder as the Agents may from time to time reasonably request.
(g) The Company will arrangeOperating Partnership and the Guarantor, if necessaryas applicable, shall notify the Agents 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 direction of the possible change, in the rating accorded any of the Operating Partnership's or the Guarantor's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Operating Partnership and the Guarantor will, whether or not any sale of Notes is consummated, pay all expenses incident to the performance of its obligations under this Distribution Agreement and any Terms Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Notes and the Guarantees, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel, (iv) the qualification of the Securities for sale Notes and Guarantees under securities or Blue Sky laws in accordance with the laws provisions of such jurisdictions as Section 3(e) hereof, including filing fees and the Representatives may designate, will maintain such qualifications in effect so long as required fees and disbursements of counsel for the distribution of the Securities Agents in connection therewith and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review the preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to the Agents in quantities as hereinabove stated of copies of the offeringRegistration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vi) the printing and delivery to the Agents of copies of any Blue Sky or Legal Investment Memoranda, (vii) any fees charged by rating agencies for the rating of the Notes, (viii) any expenses incurred by the Company in connection with a "road show" presentation to potential investors, (ix) the reasonable fees and disbursements of counsel for the Agents incurred in connection with the offering and sale of the Notes, including any opinions to be rendered by such counsel hereunder, and (x) any out-of-pocket expenses incurred by the Agents; provided that in no event any advertising expenses incurred by the Agents shall have been approved by the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of Operating Partnership and the offering or sale of the Securities in any jurisdiction where it is not now so subjectGuarantor.
(i) The Company agrees thatDuring the period beginning the date of any Terms Agreement and continuing to and including the Settlement Date with respect to such Terms Agreement, unless it has obtained or obtainsneither the Operating Partnership nor the Guarantor will, as the case may be, the without such Agent's prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representativesconsent, offer, sell, contract to sell, pledge, sell or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate 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 in respect of, any debt securities issued of the Operating Partnership or guaranteed by the Company Guarantor or warrants to purchase debt securities of the Operating Partnership or the Guarantor substantially similar to such Notes (other than (i) the SecuritiesNotes that are to be sold pursuant to such Terms Agreement, (ii) Notes previously agreed to be sold by the Operating Partnership or publicly announce an intention to effect any the Guarantor and (iii) commercial paper issued in the ordinary course of business), except as may otherwise be provided in such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement.
(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.
Appears in 2 contracts
Samples: Distribution Agreement (Amb Property Lp), Distribution Agreement (Amb Property Corp)
Agreements. (A) The Company agrees with the several Underwriters that:
(a) Prior The Company will use its best efforts to cause the termination Registration Statement, and any amendment thereof, if not effective at the Execution Time, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the offering of the SecuritiesProspectus is otherwise required under Rule 424(b), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, Registration Statement shall have been filed (if required) with the Commission pursuant to Rule 424(b)become effective, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or supplement to the Prospectus unless the Company has furnished you a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery the Company will give the Representatives immediate notice of the Final Prospectus Supplement, the Company occurrence of such event and promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale legality of the Securities in any jurisdiction where it is not now so subjectfor purchase by institutional investors.
(if) The Company agrees that, unless it has obtained Until the earlier of the day on which the distribution of the Securities is completed or obtains, as the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or 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 announce 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 in respect offering of, any debt securities issued or guaranteed covered by the Company (Registration Statement or any other than registration statement filed under the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateAct.
(jB) The several Underwriters agree with the Company that:
(a) The several Underwriters will not takepay the expenses of printing and distributing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company and the Underwriters relating to the offering.
(c) The several Underwriters will pay any fees of Xxxxx'x Investors Service, directly or indirectlyInc. and Standard & Poor's Ratings Group, 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 a division of the price of any security of XxXxxx-Xxxx Companies, Inc. relating to the Company to facilitate the sale or resale rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of PricewaterhouseCoopers LLC relating to the preparation of the letter required by Section 5(e) of this Agreement.
(e) The several Underwriters will pay the reasonable fees and expenses of The Chase Manhattan Bank as Trustee.
(f) The several Underwriters will pay any and all fees associated with listing the Securities on any United States or foreign securities exchange.
(g) The several Underwriters will pay any and all travel expenses incurred by the Company in connection with the offering of the Securities.
Appears in 2 contracts
Samples: Underwriting Agreement (International Business Machines Corp), Underwriting Agreement (International Business Machines Corp)
Agreements. (a) The Company agrees with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or amendment or supplement (including to the Final Preliminary Prospectus Supplement or the Prospectus or any Preliminary Prospectus SupplementRule 462(b) to the Base Prospectus 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1A) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2B) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3C) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any amendment or supplement to the Final Prospectus Supplement or for any additional information, (4D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any Governmental Authority of any notice objecting to its use of the Registration Statement, the Preliminary Prospectus or the Prospectus or the institution or threatening of any proceeding for that purpose and (5E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best commercially reasonable efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification suspension or objection to the use of the Registration Statement, the Preliminary Prospectus or the Prospectus and, if issuedupon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement or an amendment or supplement to the Preliminary Prospectus or the Prospectus, as the case may be, in each case subject to the first sentence of this paragraph (i), and using its best commercially reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will prepare If, at any time prior to the Final Term Sheet and will file filing of the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made at such time not misleading, the Company will will: (A) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (B) amend or supplement the Disclosure Package to correct such statement or omission; and (C) supply any amendment or supplement to you in such quantities as you may reasonably request.
(diii) 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1A) notify the Representatives of any such event; (2B) prepare and file with the Commission, subject to the second first sentence of paragraph (aa)(i) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4C) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(eiv) 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.
(fv) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gvi) The Company will use its reasonable best efforts to arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, after consultation with the Company, and will use its reasonable best efforts to maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ivii) The Company will not, without the prior written consent of the RepresentativesCitigroup 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 in respect ofAct, any debt shares of Common Stock or any securities issued convertible into, or guaranteed exercisable, or exchangeable for, any shares of Common Stock, including OP Units, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of Common Stock or any securities convertible into, or exercisable, or exchangeable for any shares of Common Stock, including OP units, whether any of such transactions are to be settled by the Company (delivery of any shares of Common Stock or other than the Securities) securities, in cash or otherwise, or publicly disclose or publicly announce an intention to effect any such transaction (the “Lock-Up Securities”), for a period commencing on of 60 days (the “Lock-Up Period”) after the date hereof of the Underwriting Agreement, provided, however, that the foregoing shall not apply to (i) any shares of Common Stock to be sold hereunder, (ii) the issuance and ending sale by the Company of Lock-Up Securities pursuant to the director equity plan, the conversion option plan or the special conversion option plan described in the Registration Statement, the Preliminary Prospectus and the Prospectus, or any award granted thereunder or (iii) the filing by the Company of any registration statement on Form S-8 with respect to the Closing Datedirector equity plan, the conversion option plan or the special conversion option plan described in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(jviii) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ix) The Company and the Operating Partnership, jointly and severally, agree to pay the costs and expenses relating to the following matters: (1) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (2) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (3) 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; (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 offering of the Securities; (5) the listing of the Securities on the NYSE; (6) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees); (7) the filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); provided that such reasonable fees and expenses of counsel for the Underwriters shall not exceed $20,000; (8) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (9) 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 (10) all other costs and expenses incident to the performance by the Company and the Operating Partnership of their respective obligations hereunder. It is understood that, subject to this Section 5(ix) and Section 7, the Underwriters shall pay all of their own costs and expenses, including the fees and disbursements of their counsel.
(x) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(xi) The Company will use its best efforts to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2013 and future taxable years unless the Board of Directors of the Company determines that it is no longer in the best interests of the Company to continue to qualify as a REIT.
(xii) The Company will notify promptly the 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 Securities within the meaning of the Securities Act and (B) completion of the Lock-Up Period referred to in Section 5(a)(vii) hereof.
(b) The Manager agrees with the several Underwriters that:
(i) The Manager will not, and will cause its subsidiaries and affiliates over which the Manager exercises control not to, take, directly or indirectly, any action designed to or that would constitute, or that would reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ii) For the Lock-Up Period, the Manager will not, directly or indirectly, take any of the following actions with respect to the Lock-Up Securities: (A) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (B) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (C) enter into any swap, hedge or any other agreement that transfers, in whole or in part, the economic consequences of ownership of Lock-Up Securities, (D) establish or increase a put equivalent position or liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning of Section 16 of the Exchange Act or (E) request or demand that the Company file with the Commission a registration statement under the Act relating to Lock-Up Securities, or publicly disclose the intention to take any such action, without the prior written consent of Citigroup Global Markets Inc.
(iii) The Manager agrees that, unless it has or shall have obtained the prior written consent of the Representatives, it has not made and will not make (A) any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433 or (B) use any Testing-the-Waters Communications.
Appears in 2 contracts
Samples: Underwriting Agreement (Altisource Residential Corp), Underwriting Agreement (Altisource Residential Corp)
Agreements. The Company agrees with the several Underwriters each Agent that:
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Agreement or any Terms Agreement, the Company will not file any Prospectus Supplement relating to the Notes or any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has previously furnished you to each Agent a copy thereof for your its review prior to filing and will not file any such proposed amendment or supplement to which you any Agent reasonably objectobjects; provided that (i) 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), 14 or 15(d) of the Exchange Act, which filings the Company will cause to be timely filed with the Commission and copies of which filings the Company will cause to be delivered to each Agent promptly after being mailed for filing with the Commission and (ii) any Prospectus Supplement that merely sets forth the terms or a description of particular Notes shall only be reviewed and approved by the Agent or Agents offering such Notes. Subject to the foregoing sentence, the Company will promptly cause the Final each Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with or transmitted for filing to the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within under the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filingSecurities Act. The Company will promptly advise each Agent (a) of the Representatives (1) when the Final Prospectus Supplement, and filing of any amendment or supplement thereto, to the Basic Prospectus (except that the filing of an amendment or supplement to the Basic Prospectus that merely sets forth the terms or a description of particular Notes shall have been filed (if required) with only be notified to the Commission pursuant to Rule 424(bAgent or Agents offering such Notes), (2b) when, prior to termination of the offering filing and effectiveness of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, (3c) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Basic Prospectus Supplement or for any additional information, (4d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5e) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the notice of suspension of any such 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, the Agents shall not be obligated to solicit offers to purchase Notes so long as they are not reasonably satisfied with 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 practicabledocument.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, any event occurs or condition exists as a result of which (i) the Final Registration Statement or the Prospectus Supplement 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 under which they were made when the Prospectus, as then amended or supplemented, is delivered to a purchaser, not misleading, or if (ii) if, in the opinion of the Agents or in the opinion of the Company, it shall be is necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Registration Statement or the Prospectus, as then amended or supplemented, to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplementapplicable law, the Company will immediately notify each Agent by telephone (with confirmation in writing) to suspend solicitation of offers to purchase Notes and, if so notified by the Company, each Agent shall forthwith suspend such solicitation and cease using the Prospectus as then amended or supplemented. If the Company shall decide to amend or supplement the Registration Statement or Prospectus as then amended or supplemented, it shall so advise the Agents promptly will by telephone (1with confirmation in writing) notify the Representatives of such event; (2) and, at its expense, shall prepare and file cause to be filed promptly with the Commission, subject to the second sentence of paragraph (a) of this Section 5, Commission an amendment or supplement to the Registration Statement or new registration statement which Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; compliance and will supply such amended or supplemented Prospectus to each Agent in such quantities as such Agent may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to the Agents pursuant to paragraph (3f) use below and Sections 5(a), 5(b) and 5(c) in connection with the preparation or filing of such amendment or supplement, are satisfactory in all respects to each Agent, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, such Agent will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this Section 3(b), until the distribution of any Notes an Agent may own as principal has been completed, if any event described above in this paragraph (b) occurs, the Company will, at its best efforts own expense, forthwith prepare and cause to have any be filed promptly with the Commission an amendment or supplement to the Registration Statement or new registration statement declared effective Prospectus as soon as practicable then amended or supplemented, satisfactory in order all respects to avoid any disruption in use of the Final Prospectus Supplement; such Agent, and (4) will supply any such amended or supplemented Final Prospectus Supplement to you such Agent in such quantities as you such Agent may reasonably request. If such amendment or supplement and any documents, certificates, opinions and letters furnished to each Agent pursuant to paragraph (f) 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 such Agent, upon the filing of such amendment or supplement with the Commission or effectiveness of an amendment to the Registration Statement, such Agent may resume its resale of Notes as principal.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives an each Agent as soon as practicable earnings statement or statements of the Company and its subsidiaries which will that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering the twelve month periods 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 158158 under the Securities Act) of the Registration Statement with respect to each sale of Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earnings statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, each Agent without charge, charge two signed copies of the Registration Statement (and all amendments thereto, including exhibits theretoand any documents incorporated by reference therein, and during the period mentioned in Section 3(b) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)above, as many copies of each Preliminary Prospectus Supplementthe Prospectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus any documents incorporated by reference therein and any amendment or supplement supplements and amendments thereto as the Representatives each Agent may reasonably request. .
(e) The Company will qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as each Agent shall reasonably request and will pay all reasonable expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with the expenses determination of printing the eligibility of the Notes for investment under the laws of such jurisdictions as each Agent may designate, provided that the Company shall not be obligated to so qualify the Notes if such qualification requires it to file any general consent to service of process or other production to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(f) During the term of all this Agreement, the Company shall furnish to each Agent such relevant documents and certificates of officers of the Company relating to the offeringbusiness, operations and affairs of the Company, the Registration Statement, the Basic Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures, any Terms Agreement and the performance by the Company of its obligations hereunder or thereunder as each Agent may from time to time reasonably request and shall notify each Agent promptly in writing of any downgrading or of its receipt of any notice of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate the direction of a possible change in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will arrangewill, if necessarywhether or not any sale of Notes is consummated, for pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto; (ii) the preparation, issuance and delivery of the Notes; (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel; (iv) the qualification of the Securities for sale Notes under securities or Blue Sky laws in accordance with the laws provisions of such jurisdictions as Section 3(e), including filing fees and the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution reasonable fees and disbursements of the Securities Agents' counsel in connection therewith and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review the preparation of any Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each Agent in quantities as hereinabove stated of copies of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suitsRegistration Statement and all amendments thereto, other than those arising out and of the offering Basic Prospectus and any amendments or sale supplements thereto; (vi) the printing and delivery to each Agent of copies of the Securities in Indenture and any jurisdiction where it is not now so subject.
Blue Sky Memoranda; (ivii) The Company agrees that, unless it has obtained or obtains, as any fees charged by rating agencies for the case may be, the prior written consent rating of the Representatives, and Notes; (iiviii) each Underwriter, severally and not jointly, agrees any reasonable out-of-pocket expenses incurred by such Agent with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent approval of the Company, it has not made ; (ix) the fees and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectusesexpenses, if any, included in Schedule III hereto. Any such free writing prospectus consented incurred with respect to by any filing with the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that National Association of Securities Dealers, Inc. and (x) it has treated the reasonable fees and will treat, as disbursements of counsel for 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, Agents incurred in connection with the requirements offering and sale of Rules 164 and 433 applicable to any Permitted Free Writing Prospectusthe Notes, including in respect of timely filing with the Commission, legending and record keepingany opinions to be rendered by such counsel hereunder.
(ih) The Between the date of any agreement by an Agent to purchase Notes as principal and the Settlement Date with respect to such agreement, the Company will not, without the prior written consent of the Representativeseach Agent, offer, sell, contract to sell, pledge, sell or otherwise dispose ofof any debt securities of the Company substantially similar to the Notes (other than (i) the Notes that are to be sold pursuant to such agreement, (or enter into any transaction which is designed to, or might reasonably ii) Notes previously agreed to be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) sold by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Companyand (iii) directly or indirectly, including the filing (or participation commercial paper issued in the filing) ordinary course of a registration statement with the Commission business), except as may otherwise be provided 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 in respect 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 commencing on the date hereof and ending on the Closing Dateagreement.
(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.
Appears in 2 contracts
Samples: Distribution Agreement (Gatx Capital Corp), Distribution Agreement (Gatx Capital Corp)
Agreements. (I) The Company agrees with the several Underwriters each Underwriter that:
(a) The Company will furnish to each Underwriter and to Counsel for the Underwriters, without charge, during the period referred to in paragraph (e) below, as many copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments and supplements thereto (to be delivered electronically) and the Final Prospectus as they may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(b) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the SecuritiesNotes, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bc) The Company will To prepare a final term sheet, in the Final Term Sheet form of Schedule I hereto, containing solely a description of final terms of the Notes and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under filing of the Act (including in circumstances where such requirement may be satisfied Final Prospectus pursuant to Rule 172424(b), any event occurs as a result of which the Final Prospectus Supplement as then 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 in the light of the circumstances under which they were made 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 if it shall be necessary to supplemented; (ii) amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplementomission; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(e) As soon If at any time prior to the earlier of (i) completion of the sale of the Notes by the Underwriters (as practicabledetermined by the Representatives) or (ii) six months from the date hereof, any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Prospectus (including any document incorporated by reference therein which was filed under the Exchange Act) to comply with the Exchange Act or the rules thereunder or other applicable law, including in connection with the use or delivery of the Final Prospectus, the Company will promptly notify the Representatives of the same and, subject to the requirements of paragraph (b) of this Section 4, will prepare and provide to the Representatives pursuant to paragraph (a) of this Section 4 an amendment or supplement which will correct such statement or omission or effect such compliance and, if such an amendment or supplement is required to be filed under the Exchange Act and is to be incorporated by reference in the Final Prospectus, will file such amendment or supplement with the Commission. The Representatives will promptly advise the Company, in writing, of the completion of the initial distribution of the Notes.
(f) The Company will, during the period when the Final Prospectus is required to be delivered under the Securities Act and during which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will make generally available to its security holders and to as soon as practicable, but not later than 90 days after the Representatives close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Act and Rule 158Registration Statement.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as cooperate with the Representatives may designate, will maintain such qualifications in effect so long as required and use its reasonable best efforts to permit the Notes to be eligible for the distribution of the Securities clearance and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsettlement through DTC.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, 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 Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(II) Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the Notes, severally represents to and agrees with the Company that it and each such affiliate:
(a) in relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Notes described in the Preliminary Prospectus to the public in that Relevant Member State other than:
(i) The Company will notto any legal entity which is a “qualified investor” as defined in the Prospectus Directive;
(ii) to fewer than 100 or, without if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Representativesunderwriters for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive, 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 provided that no such offer of Notes shall require the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) publication by the Company or any affiliate underwriter of a prospectus pursuant to Article 3 of the Company Prospectus Directive, or any person in privity with the Company or any affiliate a supplement to a prospectus pursuant to Article 16 of the Company) directly Prospectus Directive. For purposes of this provision, the expression an “offer of Notes to the public” in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or indirectlysubscribe for the Notes, as the expression may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the filing (or participation 2010 PD Amending Directive, to the extent implemented in the filingRelevant Member State) of a registration statement with and includes any relevant implementing measure in each Relevant Member State. The expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(b) will only distribute the Commission Preliminary Prospectus to, and will only direct the Preliminary Prospectus at, persons in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position the United Kingdom that are qualified investors within the meaning of Section 16 Article 2(1)(e) of the Exchange Act in respect of, any debt securities issued or guaranteed by Prospectus Directive that are also (i) investment professionals falling within Article 19(5) of the Company Financial Services and Markets Xxx 0000 (other than Financial Promotion) Order 2005 (the Securities“Order”) or publicly announce an intention (ii) high net worth entities, and other persons to effect any whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (each such transaction for person being referred to as a period commencing on the date hereof and ending on the Closing Date.“relevant person”); and
(jc) The Company have not offered or sold the Notes and will not takeoffer or sell the Notes, directly or indirectly, any action designed in Japan or to or that would constitute for the account of any resident of Japan (which term, as used in this paragraph means any person resident in Japan, including any corporation or that might reasonably be expected to cause or result in, other entity organized under the Exchange Act or otherwiselaws of Japan), stabilization or manipulation except (i) pursuant to an exemption from the registration requirements of the price Financial Instruments and Exchange Law and (ii) in compliance with any other applicable requirements of any security of the Company to facilitate the sale or resale of the SecuritiesJapanese law.
Appears in 2 contracts
Samples: Underwriting Agreement (CSX Corp), Underwriting Agreement (CSX Corp)
Agreements. The Company agrees Operating Partnership and the Guarantor agree with the several Underwriters each Agent that:
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Distribution Agreement or any Terms Agreement, the Company Operating Partnership and the Guarantor will not file any Prospectus Supplement relating to the Notes or any amendment of to the Registration Statement or supplement (including unless the Final Prospectus Supplement or any Preliminary Prospectus Supplement) Operating Partnership and the Guarantor have previously furnished to the Base Prospectus unless the Company has furnished you a copy Agents copies thereof for your their review prior to filing and will not file any such proposed supplement or amendment or supplement to which you the Agents reasonably object; provided, however, that (i) the foregoing requirement shall not apply to the filing of documents which are incorporated by reference in the Prospectus and (ii) any Prospectus Supplement that merely sets forth the terms or a description of particular Notes shall only be reviewed and approved by the Agent or Agents offering such Notes. Subject to the foregoing sentence, the Company Operating Partnership and the Guarantor will promptly cause each Prospectus Supplement to be filed with or transmitted for filing to the Final Prospectus Supplement, properly completed, Commission in accordance with Rule 424(b) under the Securities Act. The Operating Partnership and the Guarantor will promptly advise the Agents (A) of the filing of any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph Basic Prospectus (except that notice of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives filing of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any an amendment or supplement thereto, to the Basic Prospectus that merely sets forth the terms or a description of particular Notes shall have been filed (if required) with only be given to the Commission pursuant Agent or Agents offering such Notes and the Operating Partnership and the Guarantor shall not be required to Rule 424(bso advise the Agents of the filing of documents which are incorporated by reference therein), (2B) when, prior to termination of the offering filing and effectiveness of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, except for the filing of documents which are incorporated by reference therein, (3C) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Basic Prospectus Supplement or for any additional information, (4D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company Operating Partnership and the Guarantor will use its best efforts to prevent the issuance of any such stop order or the notice of suspension of any such 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, no Agent shall be obligated to solicit offers to purchase Notes so long as it is not reasonably satisfied with 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 practicabledocument.
(b) The Company will prepare If, at any time when a prospectus relating to the Final Term Sheet and will file Notes is required to be delivered under the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development condition exists as a result of which the Disclosure Package Prospectus, as then amended or supplemented, would include an untrue statement of a material fact fact, or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus, as then prevailingamended or supplemented, is delivered to a purchaser, not misleading, or if, in the Company will notify promptly the Representatives so that any use opinion of the Disclosure Package may cease until Agents or in the opinion of the Operating Partnership and the Guarantor, it is necessary at any time to amend or supplement the Prospectus, as then amended or supplemented.
, to comply with applicable law, the Operating Partnership and the Guarantor will immediately notify the Agents by telephone (dwith confirmation in writing) Ifto suspend solicitation of offers to purchase Notes and, at any time when a prospectus relating to if so notified by the Securities is required to be delivered under Operating Partnership and the Act (including in circumstances where Guarantor, the Agents shall forthwith suspend such requirement may be satisfied pursuant to Rule 172)solicitation and cease using the Prospectus, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact amended or omit to state any material fact necessary to make supplemented. If the statements therein in Operating Partnership and the light of the circumstances under which they were made not misleading, or if it Guarantor shall be necessary decide to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Registration Statement or Prospectus, as then amended or supplemented, it shall so advise the Agents promptly by telephone (with confirmation in writing) and, at its expense, shall prepare and cause to comply be filed promptly with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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, Commission an amendment or supplement to the Registration Statement or new registration statement which Prospectus, as then amended or supplemented, satisfactory in all respects to the Agents, that will correct such statement or omission or effect such compliance; (3compliance and will supply such amended or supplemented Prospectus to the Agents in such quantities as they may reasonably request. If the documents, certificates, opinions and letters furnished to the Agents pursuant to Sections 3(f), 5(a), 5(b) use its best efforts and 5(c) hereof in connection with the preparation and filing of such amendment or supplement are satisfactory in all respects to have the Agents, upon the filing with the Commission of such amendment or supplement to the Prospectus or upon the effectiveness of an amendment to the Registration Statement, the Agents will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this paragraph, until the distribution of any Notes an Agent may own as principal has been completed, if any event described above in this paragraph occurs, the Operating Partnership and the Guarantor will, at their own expense, forthwith prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or new registration statement declared effective Prospectus, as soon as practicable then amended or supplemented, satisfactory in order all respects to avoid any disruption in use of such Agent and the Final Prospectus Supplement; Operating Partnership and (4) the Guarantor, will supply any such amended or supplemented Final Prospectus Supplement to you such Agent in such quantities as you it may reasonably requestrequest and shall furnish to such Agent pursuant to Sections 3(f), 5(a), 5(b) and 5(c) hereof such documents, certificates, opinions and letters specified therein in connection with the preparation and filing of such amendment or supplement.
(ec) As soon as practicable, Each of the Company Operating Partnership and the Guarantor will make generally available to its respective security holders and to the Representatives an earnings statement or Agents as soon as practicable earning statements of the Company and its subsidiaries which will that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering twelve month periods beginning, in each case, not later than the first day of the Operating Partnership's and Guarantor's respective fiscal quarter next following the "effective date" (as defined in Rule 158158 under the Securities Act) of the Registration Statement with respect to each sale of Notes. If such fiscal quarter is the last fiscal quarter of the Operating Partnership's and Guarantor's respective fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
(d) The Operating Partnership and the Guarantor will furnish to each Agent, without charge, 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 such Agent may reasonably request.
(e) The Operating Partnership and the Guarantor will endeavor to qualify the Notes and the Guarantees for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents shall reasonably request and to maintain such qualifications for as long as the Agents shall reasonably request.
(f) Upon request, The Operating Partnership and the Company will Guarantor shall furnish to the Representatives Agents such relevant documents and counsel for the Underwriters, without charge, signed copies certificates of officers of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringbusiness, operations and affairs of the Company, the Registration Statement, the Basic Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Distribution Agreement, the Administrative Procedures, any Terms Agreement and the performance by the Company of its obligations hereunder or thereunder as the Agents may from time to time reasonably request.
(g) The Company will arrangeOperating Partnership and Guarantor, if necessaryas applicable, shall notify the Agents 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 direction of the possible change, in the rating accorded any of the Operating Partnership's or Guarantor's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Operating Partnership and the Guarantor will, whether or not any sale of Notes is consummated, pay all expenses incident to the performance of its obligations under this Distribution Agreement and any Terms Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Notes and the Guarantees, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel, (iv) the qualification of the Securities for sale Notes and Guarantees under securities or Blue Sky laws in accordance with the laws provisions of such jurisdictions as Section 3(e) hereof, including filing fees and the Representatives may designate, will maintain such qualifications in effect so long as required fees and disbursements of counsel for the distribution of the Securities Agents in connection therewith and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review the preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to the Agents in quantities as hereinabove stated of copies of the offeringRegistration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (vi) the printing and delivery to the Agents of copies of any Blue Sky or Legal Investment Memoranda, (vii) any fees charged by rating agencies for the rating of the Notes, (viii) any expenses incurred by the Company in connection with a "road show" presentation to potential investors and (ix) the reasonable fees and disbursements of counsel for the Agents incurred in connection with the offering and sale of the Notes, including any opinions to be rendered by such counsel hereunder, and (x) any out-of-pocket expenses incurred by the Agents; provided that in no event any advertising expenses incurred by the Agents shall have been approved by the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of Operating Partnership and the offering or sale of the Securities in any jurisdiction where it is not now so subjectGuarantor.
(i) The Company agrees thatDuring the period beginning the date of any Terms Agreement and continuing to and including the Settlement Date with respect to such Terms Agreement, unless it has obtained or obtainsneither the Operating Partnership nor the Guarantor will, as the case may be, the without such Agent's prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representativesconsent, offer, sell, contract to sell, pledge, sell or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate 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 in respect of, any debt securities issued of the Operating Partnership or guaranteed by the Company Guarantor or warrants to purchase debt securities of the Operating Partnership or the Guarantor substantially similar to such Notes (other than (i) the SecuritiesNotes that are to be sold pursuant to such Terms Agreement, (ii) Notes previously agreed to be sold by the Operating Partnership or publicly announce an intention to effect any the Guarantor and (iii) commercial paper issued in the ordinary course of business), except as may otherwise be provided in such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement.
(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.
Appears in 2 contracts
Samples: Distribution Agreement (Amb Property Lp), Distribution Agreement (Amb Property Lp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will To prepare the Final Term Sheet final term sheets for each series of Securities, containing solely a description of final terms of the respective Securities and will the offering thereof, each in the form approved by you and attached as Schedule III hereto and to file the Final Term Sheet such term sheets pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailingunder which they were made, 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.
(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 Supplement 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 made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheets 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 Free Writing ProspectusesProspectuses included in Schedule II hereto and any electronic road show, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested by the Underwriters for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and reasonable and documented out-of-pocket expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and reasonable and documented out-of-pocket expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Agreements. (I) The Company agrees with the several Underwriters each Underwriter that:
(a) The Company will furnish to each Underwriter and to Counsel for the Underwriters, without charge, during the period referred to in paragraph (e) below, as many copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments and supplements thereto (to be delivered electronically) and the Final Prospectus, as they may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(b) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives Representative (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bc) The Company will To prepare a final term sheet, in the Final Term Sheet form of Schedule I hereto, containing solely a description of final terms of the Securities and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under filing of the Act (including in circumstances where such requirement may be satisfied Final Prospectus pursuant to Rule 172424(b), any event occurs as a result of which the Final Prospectus Supplement as then 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 in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Disclosure Package may cease until it is amended or if it shall be necessary to supplemented; (ii) amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplementomission; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(e) As soon If at any time prior to the earlier of (i) completion of the sale of the Securities by the Underwriters (as practicabledetermined by the Representative) or (ii) six months from the date hereof, any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Prospectus (including any document incorporated by reference therein which was filed under the Exchange Act) to comply with the Exchange Act or the rules thereunder or other applicable law, including in connection with the use or delivery of the Final Prospectus, the Company will promptly notify the Representative of the same and, subject to the requirements of paragraph (b) of this Section 4, will prepare and provide to the Representative pursuant to paragraph (a) of this Section 4 an amendment or supplement which will correct such statement or omission or effect such compliance and, if such an amendment or supplement is required to be filed under the Exchange Act and is to be incorporated by reference in the Final Prospectus, will file such amendment or supplement with the Commission. The Representative will promptly advise the Company, in writing, of the completion of the initial distribution of the Securities.
(f) The Company will, during the period when the Final Prospectus is required to be delivered under the Securities Act and during which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will make generally available to its security holders and to as soon as practicable, but not later than 90 days after the Representatives close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Act and Rule 158Registration Statement.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for cooperate with the qualification of Representative and use its reasonable best efforts to permit the Securities to be eligible for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities clearance and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsettlement through DTC.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the RepresentativesRepresentative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives 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.
(II) Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the Securities, severally represents to and agrees with the Company that it and each such affiliate:
(a) in relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Securities described in the Preliminary Prospectus to the public in that Relevant Member State other than:
(i) The Company will notto any legal entity which is a “qualified investor” as defined in the Prospectus Directive;
(ii) to fewer than 100 or, without if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Representativesunderwriters for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive, 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 provided that no such offer of Securities shall require the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) publication by the Company or any affiliate underwriter of a prospectus pursuant to Article 3 of the Company Prospectus Directive, or any person in privity with the Company or any affiliate a supplement to a prospectus pursuant to Article 16 of the Company) directly Prospectus Directive. For purposes of this provision, the expression an “offer of Securities to the public” in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or indirectlysubscribe for the Securities, as the expression may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the filing (or participation 2010 PD Amending Directive, to the extent implemented in the filingRelevant Member State) of a registration statement with and includes any relevant implementing measure in each Relevant Member State. The expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(b) will only distribute the Commission Preliminary Prospectus to, and will only direct the Preliminary Prospectus at, persons in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position the United Kingdom that are qualified investors within the meaning of Section 16 Article 2(1)(e) of the Exchange Act in respect ofProspectus Directive that are also (i) investment professionals falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005 (the “Order”) or (ii) high net worth entities, any debt securities issued and other persons to whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (each such person being referred to as a “relevant person”); and
(c) have not offered or guaranteed by sold the Company (other than Securities and will not offer or sell the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed in Japan or to or that would constitute for the account of any resident of Japan (which term, as used in this paragraph means any person resident in Japan, including any corporation or that might reasonably be expected to cause or result in, other entity organized under the Exchange Act or otherwiselaws of Japan), stabilization or manipulation except (i) pursuant to an exemption from the registration requirements of the price Financial Instruments and Exchange Law and (ii) in compliance with any other applicable requirements of any security of the Company to facilitate the sale or resale of the SecuritiesJapanese law.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters each Agent that:: ----------
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Agreement or any Terms Agreement, the Company will not file any Prospectus Supplement relating to the Notes or any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has previously furnished you a copy to the Agents copies thereof for your their review prior to filing and will not file any such proposed supplement or amendment or supplement to which you the Agents reasonably object; provided, however, that (i) 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), 14 or 15(d) of the Exchange Act, copies of which filings the Company will cause to be delivered to the Agents promptly after being transmitted for filing with the Commission and (ii) any Prospectus Supplement that merely sets forth the terms or a description of particular Notes shall only be reviewed and approved by the Agent or Agents offering such Notes. Subject to the foregoing sentence, the Company will promptly cause the Final each Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with or transmitted for filing to the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within under the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filingSecurities Act. The Company will promptly advise the Representatives Agents (1i) when of the Final Prospectus Supplement, and filing of any amendment or supplement thereto, to the Basic Prospectus (except that notice of the filing of an amendment or supplement to the Basic Prospectus that merely sets forth the terms or a description of particular Notes shall have been filed (if required) with only be given to the Commission pursuant to Rule 424(bAgent or Agents offering such Notes), (2ii) when, prior to termination of the offering filing and effectiveness of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, (3iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Basic Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the notice of suspension of any such 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, no Agent shall be obligated to solicit offers to purchase Notes so long as it is not reasonably satisfied with 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 practicabledocument.
(b) The Company will prepare If, at any time when a prospectus relating to the Final Term Sheet and will file Notes is required to be delivered under the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development condition exists as a result of which the Disclosure Package Prospectus, as then amended or supplemented, would include an untrue statement of a material fact fact, or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus, as then prevailingamended or supplemented, is delivered to a purchaser, not misleading, or if, in the opinion of the Agents or in the opinion of the Company, it is necessary at any time to amend or supplement the Prospectus, as then amended or supplemented, to comply with applicable law, the Company will immediately notify promptly the Representatives Agents by telephone (with confirmation in writing) to suspend solicitation of offers to purchase Notes and, if so that any use of notified by the Disclosure Package may Company, the Agents shall forthwith suspend such solicitation and cease until it is using the Prospectus, as then amended or supplemented.
(d) If, at any time when a prospectus relating to . If 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 Supplement 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 Company shall be necessary decide to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Registration Statement or Prospectus, as then amended or supplemented, it shall so advise the Agents promptly by telephone (with confirmation in writing) and, at its expense, shall prepare and cause to comply be filed promptly with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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, Commission an amendment or supplement to the Registration Statement or new registration statement which Prospectus, as then amended or supplemented, satisfactory in all respects to the Agents, that will correct such statement or omission or effect such compliance; compliance and will supply such amended or supplemented Prospectus to the Agents in such quantities as they may reasonably request. If such amendment or supplement and any documents, certificates, opinions and letters furnished to the Agents pursuant to paragraph (3f) use 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 the Agents, upon the filing with the Commission of such amendment or supplement to the Prospectus or upon the effectiveness of an amendment to the Registration Statement, the Agents will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this Section 3(b), until the distribution of any Notes an Agent may own as principal has been completed, if any event described above in this paragraph (b) occurs, the Company will, at its best efforts own expense, forthwith prepare and cause to have any be filed promptly with the Commission an amendment or supplement to the Registration Statement or new registration statement declared effective Prospectus, as soon as practicable then amended or supplemented, satisfactory in order all respects to avoid any disruption in use of the Final Prospectus Supplement; and (4) such Agent, will supply any such amended or supplemented Final Prospectus Supplement to you such Agent in such quantities as you it may reasonably requestrequest and shall furnish to such Agent pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters as it may request in connection with the preparation and filing of such amendment or supplement.
(ec) As soon as practicable, the The Company will make generally available to its security holders of Notes issued pursuant to this Agreement and to the Representatives an earnings statement or Agents as soon as practicable earning statements of the Company and its subsidiaries which will that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering twelve month periods 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 158158 under the Securities Act) of the Registration Statement with respect to each sale of Notes. Such earning statements shall be made available as soon as practicable after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, two conformed copies of the Registration Statement, including exhibits and all amendments thereto, and during the period mentioned in Section 3(b) above, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Agents shall reasonably request and to maintain such qualifications for as long as the Agents shall reasonably request.
(f) Upon requestDuring the term of this Agreement, the Company will shall furnish to the Representatives Agents such relevant documents and counsel for the Underwriters, without charge, signed copies certificates of officers of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringbusiness, operations and affairs of the Company, the Registration Statement, the Basic Prospectus, any amendments or supplements thereto, the Indenture, the Notes, this Agreement, the Administrative Procedures, any Terms Agreement and the performance by the Company of its obligations hereunder or thereunder as the Agents may from time to time reasonably request.
(g) The Company will arrangeshall notify the Agents promptly in writing of any downgrading, if necessaryor of its receipt of any notice of any intended or potential downgrading or of any review for possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated, pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel, (iv) the qualification of the Securities for sale Notes under securities or Blue Sky laws in accordance with the laws provisions of such jurisdictions as Section 3(e), including filing fees and the Representatives may designate, will maintain such qualifications in effect so long as required fees and disbursements of counsel for the distribution Agents in connection therewith and in connection with the preparation of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to the Agents in quantities as hereinabove stated of copies of the Securities Registration Statement and will pay any fee all amendments thereto and of the Financial Industry Regulatory AuthorityProspectus and any amendments or supplements thereto, (vi) the printing and delivery to the Agents of copies of the Indenture and any Blue Sky or Legal Investment Memoranda, (vii) any fees charged by rating agencies for the rating of the Notes, (viii) the fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc., (ix) the fees and disbursements of one counsel for the Agents incurred in connection with its review the offering and sale of the offeringNotes, including any opinions to be rendered by such counsel xxxxxxxxx, and (x) any out-of-pocket expenses incurred by the Agents; provided that in no event -------- any advertising expenses incurred by the Agents shall have been approved by the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectCompany.
(i) The Company agrees that, unless it has obtained or obtains, as Between the case may bedate of any Terms Agreement and the Settlement Date with respect to such Terms Agreement, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the such Agent's prior written consent of the Representativesconsent, offer, sell, contract to sell, pledge, sell or otherwise dispose ofof any debt securities of the Company substantially similar to such Notes (other than (i) the Notes that are to be sold pursuant to such Terms Agreement, (or enter into any transaction which is designed to, or might reasonably ii) Notes previously agreed to be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) sold by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Companyand (iii) directly or indirectly, including the filing (or participation commercial paper issued in the filing) ordinary course of a registration statement with the Commission business), except as may otherwise be provided 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 in respect 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 commencing on the date hereof and ending on the Closing DateTerms Agreement.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably objectobject in writing. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Registration Statement, if not effective at the Execution Time, shall have become effective, (ii) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for of any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best reasonable 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of a final prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made 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 you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus the Final 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Registration Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, will obtain the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainswill obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “"free writing prospectus” " (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III IV hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “"Permitted Free Writing Prospectus.” " The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) . The Company will not, without the prior written consent of the RepresentativesBanc of America Securities LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, 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 commencing transaction, until the Business Day set forth on the date hereof and ending on the Closing DateSchedule I hereto.
(jf) 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 Act.
(g) The Company will not takefurnish to the Representatives and counsel for the Underwriters, directly without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or indirectlydealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any action designed supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to or that would constitute or that might reasonably be expected to cause or result inthe offering.
(h) The Company will arrange, if necessary, for the qualification of the Securities for sale under the Exchange Act or otherwiselaws of such jurisdictions as the Representatives may designate, stabilization or manipulation will maintain such qualifications in effect so long as required for the distribution of the price of Securities and will pay any security fee of the Company to facilitate the sale or resale National Association of Securities Dealers, Inc., in connection with its review of the Securitiesoffering, provided that the Company will not be required to file a consent to service of process in any state in which it is not qualified or for which consent has not been given.
(i) The Company shall not invest, or otherwise use the proceeds received by the Company from its sale of the Securities in such a manner as would require the Company or any of the Subsidiaries to register as an investment company under the 0000 Xxx.
Appears in 1 contract
Samples: Underwriting Agreement (Clear Channel Communications Inc)
Agreements. The Company agrees with the several Underwriters that:
(a) a. The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementFinal Prospectus) to the Base Basic Prospectus unless the Company has furnished you with a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) b. If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) c. 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 158158 under the Act.
(f) Upon request, the d. The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) e. The Company will arrangefurnish to the Representatives and their counsel such information as may be reasonably required by and otherwise to cooperate with, if necessary, for the qualification of Representatives in qualifying the Securities for offering and sale under the securities or blue sky laws of such jurisdictions states as the Representatives may designatedesignate (including the provisions of Florida blue sky law, will if requested, relating to issuers doing business with Cuba) and to maintain such qualifications in effect so as long as required for the distribution of the Securities Securities, provided that the Company shall not be required to qualify as a foreign corporation or a dealer or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and will pay any fee sale of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified Securities) or to take any action that which would or could subject it the Company to service of process in suits, other than those arising out of the offering or sale of the Securities taxation in any jurisdiction state where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as ; and to promptly advise the case may be, the prior written consent Representatives of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed receipt by the Company of any notification with respect to 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; provided that the prior written consent suspension of the parties hereto shall be deemed to have been given in respect qualification of the Free Writing Prospectuses, if any, included Securities for sale in Schedule III hereto. Any such free writing prospectus consented to by the Representatives any jurisdiction 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 Representatives, offer, sell, contract to sell, pledge, initiation 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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 threatening of any security of the Company to facilitate the sale or resale of the Securitiesproceeding for such purpose.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission SEC or its staff for any amendment of to the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made, at such time not misleading, the Company will 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (“Rule 172”)), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made made, at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective the rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will will: (1i) notify the Representatives of any such event; (2ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(ed) 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 that will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158158 under the Securities Act.
(fe) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement with conformed signatures (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringoffering of the Securities.
(gf) The Company will cooperate with the Representatives and counsel for the Underwriters to arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, reasonably designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ig) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which that is designed todesigned, or might would reasonably be expected toexpected, to result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or Company, 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 submission (or participation in the filingfiling or submission) of a registration statement with the Commission SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, any debt other shares of Common Stock, or any securities issued convertible into or guaranteed by the Company (other than the Securities) exercisable or exchangeable for shares of Common Stock; or publicly announce an intention to effect any such transaction transaction, for a period commencing on of 90 days after the date hereof of this Agreement, provided, however, that the Company may: (i) effect the transactions contemplated hereby; (ii) issue and ending sell shares of Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock, pursuant to any stock option plan, incentive plan, employee stock purchase plan, stock bonus plan, stock ownership plan, dividend reinvestment plan or other plan or arrangement of the Company described in the Registration Statement, the Disclosure Package and the Final Prospectus (collectively, the “Company Plans”), (iii) issue shares of Common Stock issuable upon the conversion of securities or the exercise of warrants or options or the settlement of restricted stock units outstanding at the Execution Time or issued thereafter pursuant to a Company Plan, (iv) file one or more registration statements on Form S-8 relating to any Company Plan; and (v) issue shares of Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock, or enter into an agreement to issue shares of Common Stock, or any securities convertible into or exercisable or exchangeable for shares of Common Stock, in connection with any merger, joint venture, strategic alliance, commercial or other collaborative transaction, or the Closing Dateacquisition or license of the business, property, technology or other assets of another individual or entity, or the assumption of an employee benefit plan in connection with such a merger or acquisition, provided, however, that the aggregate number of shares of Common Stock, or securities convertible into or exercisable or exchangeable for shares of Common Stock, that the Company may issue or agree to issue pursuant to this clause (v) shall not exceed 5.0% of the total outstanding shares of Common Stock immediately following the issuance of the Underwritten Securities, and provided, further, that the recipients of such securities provide to the Representatives a signed lock-up letter in the form described in Section 6(h) hereof.
(jh) The Company will not take, directly or indirectlyindirectly (without giving effect to activities by the Underwriters), any action designed to or that would constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on Nasdaq; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder; provided, however, that the reasonable fees and expenses of counsel for the Underwriters incurred pursuant to clauses (vi) and (vii) of this Section 5(i) shall not exceed $40,000 in the aggregate.
Appears in 1 contract
Samples: Underwriting Agreement (Harpoon Therapeutics, Inc.)
Agreements. The Company agrees Each of the Issuer and the Guarantors jointly and severally agree with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Issuer will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Issuer will promptly advise the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Issuer will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will Issuer shall prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in a form approved by you and shall file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(ciii) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made at such time, not misleading, the Company Issuer 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.
(div) If, at any time when a prospectus the Final 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly Issuer will (1) promptly notify the Representatives of any such event; , (2) as soon as practicable, prepare and file with the Commission, subject to the second sentence of paragraph (ai) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 SupplementProspectus; and (4) promptly supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ev) As soon as practicable, the Company Issuer will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company WTW and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fvi) Upon request, the Company The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gvii) The Company Issuer and each Guarantor will arrange, if necessary, cooperate with you and counsel for the Underwriters in connection with the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, or taxation in any jurisdiction where it is not now so subject.
(iviii) The Company Issuer and the Guarantors 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 issued by any of them to facilitate the sale or resale of the Securities.
(ix) The Issuer agrees to pay the costs and expenses relating to the following matters: (1) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Free Writing Prospectus, each Preliminary Prospectus, the Final Prospectus, and each amendment or supplement to any of them; (2) 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 Free Writing Prospectus, each Preliminary Prospectus, the Final 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 preparation, printing, authentication, issuance and delivery of certificates for 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 offering of the Securities; (5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such registration and qualification); (7) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such filings); (8) transportation and other expenses incurred by or on behalf of Issuer representatives in connection with presentations to prospective purchasers of the Securities; (9) the fees and expenses of the Issuer’s accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer and the Guarantors; (10) any fees charged by securities rating services for rating the Securities, (11) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (12) all expenses and application fees related to the listing of the Securities and trading on the Channel Islands Securities Exchange; and (13) all other costs and expenses incurred by the Issuer and the Guarantors that are incidental to the performance by the Issuer and the Guarantors of their respective obligations hereunder.
(x) Each of the Issuer and each Guarantor agrees that, unless it has obtained or obtainswill obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyIssuer, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Issuer with the Commission or retained by the Company Issuer under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 5(ii) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretoIV hereto and any roadshow or electronic roadshow. Any such free writing prospectus consented to by the Representatives or the Company Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Issuer and each Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause any Preliminary Prospectus and the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when any Preliminary Prospectus and the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal 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 Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, any debt securities issued or guaranteed by the Company (other that would mature more than one year after the Securities) Business Day set forth on Schedule I hereto and that are substantially similar to the Securities or publicly announce an intention to effect any such transaction for a period commencing transaction, until the Business Day set forth on the date hereof and ending on the Closing DateSchedule 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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior During any period when a prospectus relating to the termination of Securities is required to be delivered under the offering of the SecuritiesAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus (x) unless the Company has furnished you a copy of such proposed amendment or supplement 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, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filingprescribed. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will To prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunderAct, including in connection with the use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any supplemented or amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, reasonably request and will maintain such qualifications in effect so long as reasonably required for the distribution of the Securities and and, subject to the proviso in Section 5(k), will pay any fee all fees and expenses (including fees and disbursements of counsel to the Financial Industry Regulatory Authority, Inc., Underwriters) in connection with its review such qualification and in connection with the determination of the offeringeligibility of the Securities for investment under the laws of such jurisdictions as the Representatives may designate; provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified or qualified, (ii) to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject or (iii) to subject itself to taxation in any jurisdiction if it is not now otherwise so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) 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 Sheetfinal 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, if any, Prospectuses included in Schedule III heretohereto and any electronic road show. Any such free writing prospectus Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, 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 commencing transaction, until the Business Day set forth on the date hereof and ending on the Closing DateSchedule 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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that except as provided in this Section and Sections 7 and 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and disbursements of their counsel and any advertising expenses connected with any offers they may make. The Underwriters severally agree to reimburse the Company for its reasonable, documented, out-of-pocket costs and expenses incurred in connection with the offering of Securities hereby in an amount up to $1,912,500 within five Business Days of receipt by the Representatives from the Company of an invoice documenting such expenses.
Appears in 1 contract
Samples: Underwriting Agreement (Intel Corp)
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished you a copy with copies for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives (or transmitted for filing) with the Commission as required pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing424. The Company will promptly advise the Representatives you (1i) when each supplement to the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if requiredor transmitted for filing) with the Commission pursuant to Rule 424(b)424, (2ii) when, prior to termination of the offering of the Securities, when any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement Registration Statement, as then supplemented amended, or 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 therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify the Representatives Agents to suspend solicitation of offers to purchase Notes (and, if so notified by the Company, the Agents shall forthwith suspend such event; solicitation and cease using the Prospectus as then amended or supplemented), (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance; compliance and (3iii) use its best efforts will supply any such amended or supplemented Prospectus to have any the Agents in such quantities as the Agents may reasonably request. If such amendment or supplement is satisfactory in all respects to the Agents, the Agents will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order if such an amendment is required, resume their obligation to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement solicit offers to you in such quantities as you may reasonably requestpurchase Notes hereunder.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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 and, not later than 45 days after the end of the 12-month period beginning at the end of each fiscal quarter of the Company (other than the last fiscal quarter of any fiscal year) during which the effective date of any post-effective amendment to the Registration Statement occurs, not later than 90 days after the end of the fiscal year beginning at the end of each last fiscal quarter of any fiscal year of the Company during which the effective date of any post-effective amendment to the Registration Statement occurs, and not later than 90 days after the end of each fiscal year of the Company during which any Notes were issued, the Company will make generally available to its security holders an earnings statement covering such 12-month period or such fiscal year, as the case may be, that will satisfy the provisions of such Section 11(a) and Rule 158.
(fd) Upon request, the The Company will furnish to the Representatives you and counsel for the Underwritersyour counsel, 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) amendment thereto which shall become effective and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary any preliminary Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives you may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and Notes, and, if requested by the Agents, will pay any fee arrange for the determination of the Financial Industry Regulatory Authoritylegality of the Notes for purchase by institutional investors.
(f) The Company shall, Inc.whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing and delivery of the Registration Statement, any preliminary Prospectus, the Prospectus, all amendments thereof and supplements thereto, the Indenture and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel incurred in connection with the qualification of the Notes for sale and determination of eligibility for investment of the Notes under the securities or Blue Sky laws of each such jurisdiction as you may reasonably designate, the fees and disbursements of the Trustee and the fees of any agency that rates the Notes, and (ii) reimburse the Agents on a monthly basis for all out-of-pocket expenses (including without limitation advertising expenses) incurred by the Agents and approved by the Company in advance, in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or and the sale of the Securities Notes, and (iii) be responsible for the reasonable fees of counsel for the Agents incurred in connection with the offering and sale of the Notes.
(g) Each acceptance by the Company of an offer to purchase Notes, and each sale of Notes to you pursuant to a Terms Agreement, will be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement and in any jurisdiction where it certificate theretofore delivered to you pursuant hereto are true and correct at and as of such date and a representation and warranty to you that neither the Registration Statement nor the Prospectus, as then amended or supplemented, fails to reflect any facts or events which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement or the Prospectus, as then amended or supplemented, and/or includes any untrue statement of a material fact, or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by you or on your behalf specifically for use in connection with the preparation of the Registration Statement and the Prospectus or any amendments thereof or supplements thereto.
(h) Each time that the Registration Statement or the Prospectus is not now amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates offered on the Notes), or, if so subjectindicated in the applicable Terms Agreement, the Company sells Notes to you pursuant to a Terms Agreement, the Company will deliver or cause to be delivered forthwith to you a certificate of the Company signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form reasonably satisfactory to you, to the effect that the statements contained in the certificate that was last furnished to you pursuant to either Section 5(e) or this Section 4(h) are true and correct at the time of the effectiveness of such amendment or the filing of such supplement as though made at and as of such time (except that (i) the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission shall be substituted for the corresponding date in such certificate and (ii) such statements shall 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) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(e) but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission and 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.
(i) The Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by an amendment or supplement (i) providing solely for a change in the interest rates offered on the Notes or (ii) setting forth or incorporating by reference financial statements or other information as of and for a fiscal quarter, unless, in the case of clause (ii) above, in your reasonable judgment, such financial statements or other information are of such a nature that an opinion of counsel should be furnished), or, if so indicated in the applicable Terms Agreement, the Company agrees thatsells Notes to you pursuant to a Terms Agreement, the Company shall furnish or cause to be furnished forthwith to you a written opinion or opinions of counsel to the Company satisfactory to you, dated the date of the effectiveness of such amendment or the date of filing of such supplement, of the same tenor as the opinions referred to in Sections 5(b) and 5(c) 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 opinions, counsel last furnishing such an opinion to you may furnish you with a letter to the effect that you may rely on such 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).
(j) Each time that (i) the Registration Statement or the Prospectus is amended or supplemented by a filing under the Act to include additional financial information, (ii) there is filed with the Commission under the Exchange Act any document incorporated by reference into the Prospectus as amended and supplemented which contains additional financial information (other than any Current Report on Form 8-K relating exclusively to quarterly or annual financial results of the Company, or, unless it any Agent shall otherwise request, any Quarterly Report on Form 10-Q), or (iii) if so indicated in the applicable Terms Agreement, the Company sells Notes to you pursuant to a Terms Agreement, the Company shall cause PricewaterhouseCoopers LLP the independent registered public accounting firm which has obtained audited the financial statements of the Company and its subsidiaries included or obtainsincorporated by reference in the Prospectus as amended and supplemented forthwith to furnish you a letter, dated the date of filing with the Commission of such supplement or document, the date of effectiveness of such amendment, or the date of such sale, as the case may be, the prior written consent in form satisfactory to you in your reasonable judgment, of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, same tenor as the case letter referred to in Section 5(f) hereof, but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to the date of such letter, with such changes as may be, be necessary to reflect changes in the prior written consent financial statements and other information derived from the accounting records of the Company; provided, it has not made and will not make however, that where such amendment or supplement only sets forth unaudited quarterly financial information, the scope of such letter may be limited to relate to such unaudited financial information unless any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus other accounting or that would otherwise constitute financial information included therein is of a “free writing prospectus” (as defined character that, in Rule 405) required to your reasonable judgment, such other information should be filed addressed 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; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingletter.
(ik) The Between the date of any Terms Agreement and the Settlement Date with respect to such Terms Agreement, the Company will not, without the your prior written consent of the Representativesconsent, offer, offer or 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 agreement 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 in respect ofsell, 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 commencing on the date hereof and ending on the Closing Date.
(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 that have a substantially similar maturity and the same currency as the Notes being offered or sold pursuant to facilitate the sale or resale of the Securitiessuch Terms Agreement, except as may otherwise be provided in any such Terms Agreement.
Appears in 1 contract
Samples: Distribution Agreement (International Lease Finance Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to During the termination period beginning at the Initial Sale Time and ending on the later of the offering Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer (except for delivery requirements imposed because such Underwriter or dealer is an affiliate of the SecuritiesCompany), including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus or the Disclosure Package (including the 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives promptly (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, supplements thereto shall have been filed (if required) with the Commission pursuant to Rule 424(b)424, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or the Disclosure Package or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or to the Company’s knowledge, threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating during the Prospectus Delivery Period, except with respect to any such delivery requirement imposed upon an affiliate of the Securities is required to be delivered under the Act (including Company in circumstances where such requirement may be satisfied pursuant to Rule 172)connection with any secondary market sales, any event occurs as a result of which the Final Disclosure Package or the Prospectus Supplement 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 or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Disclosure Package or the Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementAct, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which that will correct such statement or omission or an amendment or supplement that will effect such compliance; compliance (3) use its best efforts including, if consented to have any amendment by the Underwriters, by means of an Issuer Free Writing Prospectus), and will give immediate notice, and confirm in writing, to the Registration Statement Underwriters to cease the solicitation of offers to purchase the Shares, and furnish to the Underwriters a reasonable number of copies of such amendment or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably requestsupplement.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 60 days after the close of the period covered thereby, an earnings statement or statements (in form complying with the provisions under Rule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company and its subsidiaries which will satisfy Company’s fiscal quarter next following the provisions of Section 11(a“effective date” (as defined in Rule 158) of the Act and Rule 158Registration Statement.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, as many copies of each Preliminary Prospectus Supplementthe preliminary prospectus, or the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities Shares for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Shares and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review legality of the offeringShares for purchase by investors; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(if) The During the period commencing on the date hereof and ending [__] days after the date of the Prospectus (the “Lock-Up Period”), the Company agrees thatwill not, unless it has obtained or obtains, as the case may be, without the prior written consent of the Representatives, and (1) offer or sell in a public offering or an offering pursuant to Rule 144A under the Securities Act, or pledge, any shares of Common Stock, any shares of convertible preferred stock, or any capital stock or other securities, including units or debt securities, convertible into, or exercisable for, shares of Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash, or otherwise. The foregoing restriction shall not apply to (i) the issuance of securities pursuant to or in connection with any employment contract, benefit plan or similar arrangement with or for the benefit of employees, officers, directors or consultants adopted before or after the date hereof, (ii) each Underwritersales or issuances of securities pursuant to contractually binding requirements or agreements currently in effect, severally (iii) any issuance or commitment to issue securities in connection with any merger or acquisition transaction, or (iv) any issuance that is the result of an exchange or conversion of any class or series of capital stock for any other series of capital stock.
(g) The Company represents that it has not made and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, obtains the prior written consent of the CompanyRepresentatives, it has not made and will not make make, any offer relating to the Securities Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in under Rule 405405 under the Securities Act) 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 433 under the information contained in the Final Term SheetSecurities Act; provided that the prior written consent of the parties hereto Representatives shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (xi) it has treated and will treat, treat as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus Prospectus, and (yii) it has complied and will comply, as the case may be, with the requirements of under Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined under Rule 433, and (b) contains only (i) information describing the preliminary terms of the Shares or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Shares or their offering.
(ih) The Company will notIn connection with the offering contemplated hereby, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect of, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention agrees not to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might could reasonably be expected to cause or result in, under the Exchange Act or otherwise, in any stabilization or manipulation of the price of any security the Shares; provided that the Company may repurchase shares of its Common Stock in compliance with the safe harbor provided by Rule 10b-18 under the Exchange Act and in compliance with Regulation M under the Exchange Act after [the thirtieth day following the date of this Agreement][the end of the option exercise period set forth in Section 2 hereof].
(i) The Company agrees to facilitate use its best efforts to list, subject to notice of issuance, the sale or resale Shares on the Nasdaq Global Select Market and to maintain such listing on the Nasdaq Global Select Market.
(j) The Company agrees to maintain a transfer agent and, if necessary under the jurisdiction of incorporation of the SecuritiesCompany, a registrar for the Common Stock.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished you a copy with copies for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives (or transmitted for filing) with the Commission as required pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing424. The Company will promptly advise the Representatives you (1i) when each supplement to the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if requiredor transmitted for filing) with the Commission pursuant to Rule 424(b)424, (2ii) when, prior to termination of the offering of the Securities, when any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement Registration Statement, as then supplemented amended, or 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 therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify the Representatives Agents to suspend solicitation of offers to purchase Notes (and, if so notified by the Company, the Agents shall forthwith suspend such event; solicitation and cease using the Prospectus as then amended or supplemented), (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance; compliance and (3iii) use its best efforts will supply any such amended or supplemented Prospectus to have any the Agents in such quantities as the Agents may reasonably request. If such amendment or supplement is satisfactory in all respects to the Agents, the Agents will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order if such an amendment is required, resume their obligation to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement solicit offers to you in such quantities as you may reasonably requestpurchase Notes hereunder.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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 and, not later than 45 days after the end of the 12-month period beginning at the end of each fiscal quarter of the Company (other than the last fiscal quarter of any fiscal year) during which the effective date of any post-effective amendment to the Registration Statement occurs, not later than 90 days after the end of the fiscal year beginning at the end of each last fiscal quarter of any fiscal year of the Company during which the effective date of any post-effective amendment to the Registration Statement occurs, and not later than 90 days after the end of each fiscal year of the Company during which any Notes were issued, the Company will make generally available to its security holders an earnings statement covering such 12-month period or such fiscal year, as the case may be, that will satisfy the provisions of such Section 11(a) and Rule 158.
(fd) Upon request, the The Company will furnish to the Representatives you and counsel for the Underwritersyour counsel, 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) amendment thereto which shall become effective and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary any preliminary Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives you may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and Notes, and, if requested by the Agents, will pay any fee arrange for the determination of the Financial Industry Regulatory Authoritylegality of the Notes for purchase by institutional investors.
(f) The Company shall, Inc.whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing and delivery of the Registration Statement, any preliminary Prospectus, the Prospectus, all amendments thereof and supplements thereto, the Indenture and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel incurred in connection with the qualification of the Notes for sale and determination of eligibility for investment of the Notes under the securities or Blue Sky laws of each such jurisdiction as you may reasonably designate, the fees and disbursements of the Trustee and the fees of any agency that rates the Notes, and (ii) reimburse the Agents on a monthly basis for all out-of-pocket expenses (including without limitation advertising expenses) incurred by the Agents and approved by the Company in advance, in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or and the sale of the Securities Notes, and (iii) be responsible for the reasonable fees of counsel for the Agents incurred in connection with the offering and sale of the Notes.
(g) Each acceptance by the Company of an offer to purchase Notes, and each sale of Notes to you pursuant to a Terms Agreement, will be deemed to be an affirmation that the representations and warranties of the Company contained in this Agreement and in any jurisdiction where it certificate theretofore delivered to you pursuant hereto are true and correct at and as of such date and a representation and warranty to you that neither the Registration Statement nor the Prospectus, as then amended or supplemented, fails to reflect any facts or events which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement or the Prospectus, as then amended or supplemented, and/or includes any untrue statement of a material fact, or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by you or on your behalf specifically for use in connection with the preparation of the Registration Statement and the Prospectus or any amendments thereof or supplements thereto.
(h) Each time that the Registration Statement or the Prospectus is not now amended or supplemented (other than by an amendment or supplement providing solely for a change in the interest rates offered on the Notes), or, if so subjectindicated in the applicable Terms Agreement, the Company sells Notes to you pursuant to a Terms Agreement, the Company will deliver or cause to be delivered forthwith to you a certificate of the Company signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form reasonably satisfactory to you, to the effect that the statements contained in the certificate that was last furnished to you pursuant to either Section 5(e) or this Section 4(h) are true and correct at the time of the effectiveness of such amendment or the filing of such supplement as though made at and as of such time (except that (i) the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission shall be substituted for the corresponding date in such certificate and (ii) such statements shall 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) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(e) but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission and 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.
(i) The Company agrees that, unless it has obtained Each time that the Registration Statement or obtains, as the case may be, Prospectus is amended or supplemented (other than by an amendment or supplement (i) providing solely for a change in the prior written consent of interest rates offered on the Representatives, and Notes or (ii) each Underwritersetting forth or incorporating by reference financial statements or other information as of and for a fiscal quarter, severally and not jointlyunless, agrees with in the case of clause (ii) above, in your reasonable judgment, such financial statements or other information are of such a nature that an opinion of counsel should be furnished), or, if so indicated in the applicable Terms Agreement, the Company thatsells Notes to you pursuant to a Terms Agreement, unless it has obtained the Company shall furnish or obtainscause to be furnished forthwith to you a written opinion or opinions of counsel to the Company satisfactory to you, dated the date of the effectiveness of such amendment or the date of filing of such supplement, of the same tenor as the case may be, opinions referred to in Sections 5(b) and 5(c) but modified to relate to the prior written consent Registration Statement and the Prospectus as amended and supplemented to the time of the Companyeffectiveness of such amendment or the filing of such supplement or, it has not made and will not make any offer relating in lieu of such opinions, counsel last furnishing such an opinion to you may furnish you with a letter to the Securities effect that would constitute an Issuer Free Writing Prospectus or you may rely on such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that would otherwise constitute a “free writing prospectus” (as defined statements in Rule 405) 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; provided that the prior written consent of the parties hereto shall such last opinion will be deemed to have been given in respect relate to the Registration Statement and the Prospectus as amended and supplemented to the time of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any effectiveness of such free writing prospectus consented to by the Representatives amendment 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 filing of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingsuch supplement).
(ij) The Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information or such amended or supplemental information is incorporated by reference in the Registration Statement or the Prospectus, or, if so indicated in the applicable Terms Agreement, the Company sells Notes to you pursuant to a Terms Agreement, the Company shall cause each of Ernst & Young LLP, its former independent auditors and PricewaterhouseCoopers LLP, its current independent auditors, forthwith to furnish you a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form satisfactory to you, of the same tenor as the letters referred to in Section 5(f) 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 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, Ernst & Young LLP need not provide such a letter and PricewaterhouseCoopers LLP may limit the scope of such letter, which shall be satisfactory in form to you, to the unaudited financial statements included in such amendment or supplement, unless any other information included or incorporated by reference therein of an accounting, financial or statistical nature is of such a nature that, in your reasonable judgment, such letter should cover such other information.
(k) Between the date of any Terms Agreement and the Settlement Date with respect to such Terms Agreement, the Company will not, without the your prior written consent of the Representativesconsent, offer, offer or 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 agreement 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 in respect ofsell, any debt securities issued or guaranteed by of the Company (other than the Securities) or publicly announce an intention to effect Company, except as may otherwise be provided in any such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement. 5.
(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.
Appears in 1 contract
Samples: Distribution Agreement (International Lease Finance Corp)
Agreements. The Company agrees Each of the Obligors, jointly and severally, agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company Obligors will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus unless the Company has Obligors have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Obligors will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Obligors will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company Obligors of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Obligors will use its their commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its commercially reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an 424(b), any event or development occurs as a result of which the 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 circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company Obligors 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company Obligors promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) use its commercially reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) As soon as practicable, the Company Obligors will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company Parent and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fe) Upon request, the Company The Obligors will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company Obligors will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company Obligors will arrange, if necessary, for the qualification of the Securities for offering and sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Obligors be obligated to qualify to do business in any jurisdiction where it is not now so qualified qualified, to subject itself to taxation in respect of doing business in any jurisdiction in which it is not now so subject or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ig) The Company Obligors agree that, unless they have obtained or will obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Obligors that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyObligors, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Obligors with the Commission or retained by the Company Obligors under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretohereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company Obligors is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees Obligors agree that (x) it has they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has they have complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) The Company will notNeither of the Obligors will, without the prior written consent of each of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company Obligors or any affiliate of the Company Obligors or any person in privity with the Company Obligors or any affiliate of the Company) Obligors), 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 in respect ofAct, any debt securities issued or guaranteed by the Company guarantees thereof (other than the Securities) Notes and the Parent Guarantee), or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on transaction, until after the Closing Date.
(ji) The Company Neither of the Obligors 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 Issuer to facilitate the sale or resale of the Securities.
(j) Each of the Obligors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and will use their commercially reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(k) The Obligors agree to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp or transfer taxes in connection with the original issuance and sale of the Notes; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and the preparation of a blue sky memorandum (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration, qualification and preparation); (vi) any filings required to be made with the FINRA including filing fees (and including the reasonable fees and expenses of counsel for the Underwriters relating to such filings up to a maximum amount of $50,000); (vii) the transportation and other expenses incurred by or on behalf of the representatives of the Obligors in connection with presentations to prospective purchasers of the Securities; (vii) the fees and expenses of the Issuer’s and the Parent’s accountants and the fees and expenses of counsel (including local and special counsel) for the Obligors; and (x) all other costs and expenses incident to the performance by the Obligors of their obligations hereunder.
(l) The Obligors will use the net proceeds received by the Obligors from the sale of the Securities in the manner specified in the Preliminary Prospectus and the Final Prospectus under the caption “Use of Proceeds.”
(m) The Parent will use its best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2020 and the taxable year ending December 31, 2021, as a REIT under the Code and the Issuer will use its best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2020 and the taxable year ending December 31, 2021, as a partnership under the Code.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(ai) Prior to the termination of the offering of the Offered Securities, the Company will not use or file any Issuer Free Writing Prospectus nor file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished you the Representative a copy for your the Representative’s review prior to such use or filing and will not file any such proposed amendment or supplement to which you the Representative reasonably objectobjects. Subject to the foregoing sentence, sentence the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing424. The Company will promptly advise the Representatives Representative (1a) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424, (2b) when, prior to the termination of the offering of the Offered Securities, any amendment to the Registration Statement shall have been filed or become effective, (3c) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, (e) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act and (5f) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any preliminary prospectus supplement or the suspension of Prospectus or suspending any such qualification of the Offered Securities and, if any such order is issued, to obtain as soon as possible the withdrawal thereof, or, subject to the first sentence of such stop order or relief from such occurrence or objectionthis paragraph (i) of this Section 4, including, if necessary, by filing will file an amendment to the Registration Statement or will file a new registration statement and using use its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will prepare If, at any time prior to the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Closing Date, any event occurs an event or development as a result of which the General Disclosure Package as then amended or supplemented would include an any untrue statement statements 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 circumstances then prevailingunder which they were made, not misleadingmisleading or if it shall be necessary to amend or supplement the General Disclosure Package to comply with the Securities Act or the Exchange Act or the respective rules thereunder, the Company promptly will notify promptly prepare and file with the Representatives so that any use Commission (to the extent required), subject to the first sentence of the Disclosure Package may cease until it is amended paragraph (i) of this Section 4, an amendment or supplementedsupplement which will correct such statement or omission or effect such compliance.
(diii) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to by way of Rule 172172 under the Securities Act or any other similar rule), any event occurs as a result of which the Final Prospectus Supplement as then amended or supplemented would include any untrue statement statements of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, misleading or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (ai) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(eiv) As soon as practicable, the Company will make generally available to its security holders securityholders and to the Representatives 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 158158 under the Securities Act.
(fv) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies a copy of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, as many copies of each Preliminary Prospectus Supplementany preliminary prospectus or related preliminary prospectus supplement, the Final Prospectus Supplement and any amendments thereof and supplement thereto and each Issuer Free Writing Prospectus and any amendment or supplement thereto (if applicable) as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating related to the offering.
(gvi) The Company will arrange, if necessary, for use its reasonable efforts to qualify the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives Representative may designatereasonably designate in writing to the Company not later than the Closing Date, and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringOffered Securities; provided that in no event shall connection therewith the Company shall not be obligated required to qualify to do business as a foreign corporation or as a dealer in any jurisdiction where it is not now so qualified securities or to take execute or file any action that would subject it consent to service of process in suits, other than those arising out of the offering any jurisdiction or sale of the Securities subject itself to taxation in any jurisdiction where if it is not now otherwise so subject.
(ivii) The Company agrees that, unless it has obtained or obtains, as Until the case may be30th day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the RepresentativesX.X. Xxxxxx Securities LLC, such consent not to be unreasonably withheld or delayed, offer, sell, sell or contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including 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 in respect 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 commencing on offer, sale or contract to sell, the date hereof and ending on offering of, any debt securities covered by the Closing DateRegistration Statement or any other registration statement filed under the Securities Act or any other debt securities issued by the Company.
(jviii) The Company will not directly or indirectly use the proceeds of the sale of the Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to a subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country, (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions, or (iv) in any other manner in contradiction with the description in the Registration Statement, the General Disclosure Package and the Prospectus.
(ix) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Offered Securities.
(x) The Company shall use commercially reasonable efforts to obtain the approval of DTC to permit the Offered Securities to be eligible for “book-entry” transfer and settlement through the facilities of DTC, and agrees to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(xi) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”.
(xii) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus Supplement, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging, including any form of electronic distribution) of such copies of the Registration Statement, each Preliminary Prospectus Supplement, 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 Offered Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Offered Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Offered Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Offered Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Offered Securities on the New York Stock Exchange; (vi) any registration or qualification of the Offered Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification not to exceed $10,000); (vii) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for “book-entry” transfer, and fees and expenses incidental to the performance by the Company of its other obligations under this Agreement; (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Offered Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the filing fees and expenses (including legal fees and disbursements) incident to securing any required review by FINRA of the terms of the sale of the Offered Securities; (xi) the fees and expenses of the Independent Underwriter and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (OLIN Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) As soon as practicablepracticable consistent with the Company’s prior practice, 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.
(fe) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed or conformed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretohereto and 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 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.
(ih) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might would reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for a period commencing transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the date hereof Company may issue and ending sell Common Stock to the Underwriters pursuant to this Agreement, pursuant to any director or employee benefit plans, qualified stock option plans or other employee compensation plans of the Company in effect at the Execution Time and the Company may issue Common Stock pursuant to the valid exercises of options, warrants or rights outstanding at the Execution Time and the issuance of options, warrants or rights after the Execution Time in the ordinary course of business and consistent with past practice, including the filing of any registration statement on the Closing DateForm S-8 relating to such issuances.
(ji) 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 agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq GM; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $10,000); (vii) any filings required to be made with “”FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $15,000); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Vanda Pharmaceuticals Inc.)
Agreements. (i) The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or the ADR Registration Statement or supplement (including to the Final International Prospectus Supplement or the International Preliminary Prospectus or any Preliminary Prospectus SupplementRule 462(b) to the Base Prospectus 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementInternational Prospectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company will promptly advise the Representatives Representative (1) when the Final Prospectus SupplementInternational Prospectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement or ADR Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement or the ADR Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement or the ADR Registration Statement, or for any supplement to the Final International Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification suspension or presentation and, if issuedupon such issuance, occurrence or prevention, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionprevention, including, if necessary, by filing an amendment to the Registration Statement or 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 Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final International Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or the ADR Registration Statement or supplement the Final Disclosure Package or the International Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives Representative of such event; , (2) prepare and file with the Commission, subject to the second sentence of paragraph (ai)(a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3) 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 International Prospectus Supplement; and (4) supply any amended or supplemented Final International Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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.
(fe) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement and the ADR Registration Statement (including exhibits thereto) and to each other 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 Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each International Preliminary Prospectus SupplementProspectus, the Final International Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any has paid the fee of the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or obtains, as the case may be, will obtain the prior written consent of the RepresentativesRepresentative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainswill obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretoIV hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives 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.
(ih) The Company will not, without the prior written consent of the RepresentativesRepresentative, 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 in respect ofAct, any debt Common Shares or ADSs or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, Common Shares or ADSs; or publicly announce an intention to effect any such transaction for a period commencing transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the date hereof Company may issue and ending on sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Closing DateCompany 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.
(ji) 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 Common Shares or the ADSs.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, each Prospectus, the ADR Registration Statement, and each Issuer Free Writing Prospectus and each amendment or supplement to any of them; (ii) the preparation of the Deposit Agreement, the deposit of the Underlying Shares under the Deposit Agreement, the issuance thereunder of ADSs representing such deposited Underlying Shares, the issuance of ADRs evidencing such ADSs and the fees of the Depositary; (iii) 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 International Preliminary Prospectus, the International Prospectus, the ADR Registration Statement, and each Issuer Free Writing Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (v) the printing (or reproduction) and delivery of this Underwriting Agreement or the Mexican Underwriting Agreement and any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (vi) the registration of the Securities under the Exchange Act and the listing of the ADSs on the New York Stock Exchange and the listing of the Common Shares on the Mexican Stock Exchange; (vii) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable documented fees and expenses of counsel for the Underwriters relating to such registration and qualification); (viii) 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); (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (x) 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 (xi) all other costs and expenses incident to the performance by the Company and the Selling Shareholders of their obligations under the Underwriting Agreements which are not otherwise specifically provided for in this Section 5. In addition, the Company agrees to also pay or reimburse the Underwriters (to the extent incurred by them) for all expenses of the Underwriters, including all expenses incurred in connection with the roadshow and printing of roadshow materials, and all other out-of-pocket expenses of the Underwriters, including the fees and disbursements of their international and local legal counsel; provided that the aggregate reimbursement for all such expenses shall not exceed U.S.$200,000.
(ii) Each Selling Shareholder agrees with the several Underwriters that:
(a) Such Selling Shareholder 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 Selling Shareholder or any affiliate of the Selling Shareholder or any person in privity with the Selling Shareholder or any affiliate of the Selling Shareholder) 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 Common Shares or ADSs or any securities convertible into or exercisable or exchangeable for Common Shares or ADSs; or publicly announce an intention to effect any such transaction until the Business Day set forth on Schedule I hereto.
(b) Such Selling Shareholder 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 Common Shares or the ADSs.
(c) If any of the following come to the attention of such Selling Shareholder, such Selling Shareholder 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 otherwise), prospects, results of operations, business or properties, (ii) any change in information in the Registration Statement, the ADR Registration Statement, the International Preliminary Prospectus, the International Prospectus or any Free Writing Prospectus, or any amendment or supplement thereto, relating to such Selling Shareholder or (iii) any new material information relating to the Company or relating to any matter stated in the Prospectuses or any Free Writing Prospectus which comes to the attention of such Selling Shareholder.
(d) Such Selling Shareholder represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Securities.
(e) Such Selling Shareholder will comply with the agreement contained in Section 5(i)(g).
Appears in 1 contract
Agreements. (A) The Company agrees with the several Underwriters that:
(a) Prior The Company will use its best efforts to cause the termination Registration Statement, and any amendment thereof, if not effective at the Execution Time, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the offering of the SecuritiesProspectus is otherwise required under Rule 424(b), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, Registration Statement shall have been filed (if required) with the Commission pursuant to Rule 424(b)become effective, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or supplement to the Prospectus unless the Company has furnished you a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery the Company will give the Representatives immediate notice of the Final Prospectus Supplement, the Company occurrence of such event and promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale legality of the Securities in any jurisdiction where it is not now so subjectfor purchase by institutional investors.
(if) The Company agrees that, unless it has obtained Until the earlier of the day on which the distribution of the Securities is completed or obtains, as the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or 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 announce 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 in respect offering of, any debt securities issued or guaranteed covered by the Company (Registration Statement or any other than registration statement filed under the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateAct.
(jB) The several Underwriters agree with the Company that:
(a) The several Underwriters will not takepay the expenses of printing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company relating to the offering.
(c) The several Underwriters will pay any fees of Xxxxx'x Investors Service, directly or indirectlyInc. and Standard & Poor's Ratings Group, 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 a division of the price of any security of XxXxxx-Xxxx Companies, Inc. relating to the Company to facilitate the sale or resale rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of PricewaterhouseCoopers LLC relating to the preparation of the letter required by Section 5(e) of this Agreement.
(e) The several Underwriters will pay the reasonable fees and expenses of The Chase Manhattan Bank as Trustee.
Appears in 1 contract
Samples: Underwriting Agreement (International Business Machines Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company has furnished you to the Representative for its review a copy for your review thereof prior to filing and will not file any such proposed amendment or supplement to which you reasonably objectfiling. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives (or transmitted for filing) with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing424. The Company will promptly advise the Representatives Representative (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if requiredor transmitted for filing) with the Commission pursuant to Rule 424(b)424, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 5Company furnishing to the Representative for its review a copy thereof prior to filing, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Representative an earnings statement or statements (which need not be audited) of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives Representative and to counsel for the Underwriters, without charge, one signed copies copy of the Registration Statement (including exhibits thereto) and to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities, will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay any the fee of the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc., if any, in connection with its review of the offering; provided provided, however, that in no event shall the Company shall not be obligated required to effect or maintain any such qualification in any jurisdiction that would result in it having to execute or file a general consent to service of process under the laws of such jurisdiction or to qualify to do business as a foreign corporation in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsuch jurisdiction.
(if) The Company agrees that, unless it has obtained or obtains, as Through the case may be45th day after the date of this Agreement, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the RepresentativesRepresentative, directly or indirectly, offer, sell, contract offer to sell, pledge, grant an option for the sale of or otherwise dispose ofof any of (i) the Securities, (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 securities of the Company convertible into or exchangeable for the Securities or any person in privity with securities of the Company exchangeable for, convertible into or any affiliate of for which the Company) directly principal amount thereof 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 in respect of, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention payment thereon is referenced to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(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 or dividend rate on shares of common stock of America Online, Inc., a Delaware corporation ("AOL") or (ii) shares of common stock of AOL owned by the Company; provided, however, that the foregoing shall not prohibit the Company from taking any security of the Company to facilitate the sale foregoing actions in connection with any exchanges or resale redemptions of the SecuritiesSecurities or in connection with any tender offer or exchange offer for all or a portion of the outstanding shares of common stock of AOL.
Appears in 1 contract
Samples: Underwriting Agreement (Tribune Co)
Agreements. (A) The Company agrees with the several Underwriters that:
(a) Prior The Company will use its best efforts to cause the Registration Statement, and any amendment thereof, if not effective at the Execution Time, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required under Rule 424(b), the Company will file the Prospectus, properly completed, pursuant to the termination applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Registration Statement shall have become effective, (ii) when any amendment to the Registration Statement relating to the Securities shall have become effective, (iii) of any request by the Commission for any amendment of the offering Registration Statement or amendment of or supplement to the Prospectus or for any additional information, (iv) of the Securitiesissuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery the Company will give the Representative immediate notice of the Final Prospectus Supplement, the Company occurrence of such event and promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives Representative as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale legality of the Securities in any jurisdiction where it is not now so subjectfor purchase by institutional investors.
(if) The Company agrees that, unless it has obtained Until the earlier of the day on which the distribution of the Securities is completed or obtains, as the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the RepresentativesRepresentative, offer, offer or 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 announce 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 in respect offering of, any debt securities issued or guaranteed covered by the Company (Registration Statement or any other than registration statement filed under the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateAct.
(jB) The several Underwriters agree with the Company that:
(a) The several Underwriters will not takepay the expenses of printing and distributing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company and the Underwriters relating to the offering.
(c) The several Underwriters will pay any fees of Moody's Investors Service, directly or indirectlyInc. and Standard & Poor's Ratings Grxxx, 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 x division of the price of any security of McGraw-Hill Companies, Inc. relating to the Company to facilitate the sale or resale rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of PricewaterhouseCoopers LLC relating to the preparation of the letter required by Section 5(e) of this Agreement.
(e) The several Underwriters will pay the reasonable fees and expenses of JPMorgan Chase Bank as Trustee.
(f) The several Underwriters will pay any and all fees associated with listing the Securities on any United States or foreign securities exchange.
(g) The several Underwriters will pay any and all travel expenses incurred by the Company in connection with the offering of the Securities.
(h) The several Underwriters will pay any and all other miscellaneous expenses and/or taxes associated with the offering.
Appears in 1 contract
Samples: Underwriting Agreement (International Business Machines Corp)
Agreements. The Company agrees with the several Underwriters each Underwriter that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise furnish to each Underwriter and to counsel for the Representatives (1Underwriters, without charge, during the period referred to in Section 5(f) when below, as many copies of the Final materials contained in the Disclosure Package and the Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose amendments and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain supplements thereto as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethey may reasonably request.
(b) The Company will prepare a final term sheet, containing solely a description of the Final Term Sheet final terms of the Securities and the offering thereof, in the form approved by you and attached as Schedule I hereto.
(c) The Company will not amend or supplement the Registration Statement, Disclosure Package 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, which consent shall not be unreasonably withheld or delayed; provided, however, that from the Execution Time to the Closing Date, the Company will (i) not file any document under the Final Term Sheet Exchange Act that is incorporated by reference in the Disclosure Package or the Prospectus unless, 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, and (ii) promptly advise the Representatives when any document filed under the Exchange Act that is incorporated by reference in the Disclosure Package or the Prospectus shall have been filed with the Commission.
(d) To 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 and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) within under the time Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required by such Ruleto file thereunder.
(cf) If there at any time prior to the completion of the sale of the Securities by the Underwriters (as determined by the Representatives), any event occurs an event or development as a result of which the Disclosure Package or the Prospectus, as then amended or supplemented, 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement 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 when such Disclosure Package or Prospectus is delivered, not misleading, or if it shall should be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Disclosure Package or the Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplementapplicable law, the Company will promptly will (1i) notify the Representatives of any such event; (2ii) prepare and file with the Commission, subject to the second sentence requirements of paragraph (a) of this Section 55(c), prepare an amendment or supplement or new registration statement which that will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4iii) supply any supplemented or amended Disclosure Package or supplemented Final Prospectus Supplement to you the several Underwriters and counsel for the Underwriters without charge in such quantities as you they may reasonably request.
(eg) As soon as practicableWithout the prior written consent of the Representatives, the Company has not given and will make generally available not give to its security holders and to the Representatives an earnings statement or statements any prospective purchaser of the Company and its subsidiaries which will satisfy Securities any written information concerning the provisions of Section 11(a) offering of the Act and Rule 158Securities other than materials contained in the Disclosure Package, the Prospectus or any other offering materials prepared by or with the prior written consent of the Representatives.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities and will pay any fee of the Financial Industry Regulatory AuthoritySecurities, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(i) The Company agrees that, unless it has obtained or obtains, as If the case may be, the prior written consent third anniversary of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent initial effectiveness date of the CompanyRegistration Statement occurs before all the Securities have been sold by the Underwriters, it has not made and will not make any offer relating prior to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute third anniversary to file a “free writing prospectus” (as defined in Rule 405) required new shelf registration statement and to be filed by take any other action necessary to permit 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; provided that the prior written consent public offering of the parties hereto Securities to continue without interruption; references herein to the Registration Statement shall be deemed to have been given in respect of include the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees new registration statement 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 becomes effective with the Commission, legending and record keeping.
(ij) The Company will use its best efforts to effect the listing of the Securities on the NYSE within the 30-day period after the initial delivery of the Securities and will maintain such listing in effect so long as required for the sale of the Securities and the Preferred Stock.
(k) During the period from the date hereof through and including 30 days after the date of the Prospectus, the Company will not, without the prior written consent of the Representatives, Representatives offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company its affiliates or any person in privity with the Company or any affiliate of the Company) its affiliates, directly or indirectly, including or announce the filing (offering, of any Preferred Stock, any Securities, any securities of the Company that are substantially similar to the Preferred Stock or participation in the filing) of a registration statement with the Commission in respect ofSecurities, or establish any securities exchangeable or increase a put equivalent position convertible into or liquidate represent the right to receive Preferred Stock, Securities or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any debt such substantially similar securities issued or guaranteed by the Company (other than as contemplated by this Agreement with respect to the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date).
(jl) The Company will not take, directly or indirectly, any action designed to to, or that would constitute has constituted or that might reasonably be expected to to, cause or result inresult, 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.
(m) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation of the Deposit Agreement and the issuance of the Securities (including the Depositary Receipts) and the fees of the Depositary; (ii) the preparation, printing or reproduction of the materials contained in the Disclosure Package and the Prospectus and each amendment or supplement to either of them; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the materials contained in the Disclosure Package and the Prospectus, and all amendments or supplements to either of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iv) the preparation, printing, authentication, issuance and delivery of the Securities; (v) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (vi) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (vii) all filing fees and up to $5,000 in reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(h), if any, or exemptions therefrom; (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) all filing fees and up to $15,000 in reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by FINRA, if any, or exemptions therefrom and related disclosure; (xi) all costs and expenses incident to listing the Securities on the NYSE; and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It, however, is understood that, except as provided in this Section 5, and Sections 7 and 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
Appears in 1 contract
Agreements. The Company agrees Each of the Obligors, jointly and severally, agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company Obligors will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus unless the Company has Obligors have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Obligors will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Obligors will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company Obligors of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Obligors will use its their commercially reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its commercially reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an 424(b), any event or development occurs as a result of which the 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 circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company Obligors 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be 21 satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company Obligors promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) use its commercially reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) As soon as practicable, the Company Obligors will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company Parent and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fe) Upon request, the Company The Obligors will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company Obligors will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company Obligors will arrange, if necessary, for the qualification of the Securities for offering and sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Obligors be obligated to qualify to do business in any jurisdiction where it is not now so qualified qualified, to subject itself to taxation in respect of doing business in any jurisdiction in which it is not now so subject or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ig) The Company Obligors agree that, unless they have obtained or will obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Obligors that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyObligors, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Obligors with the Commission or retained by the Company Obligors under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretohereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company Obligors is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees Obligors agree that (x) it has they have treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has they have complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) The Company will notNeither of the Obligors will, without the prior written consent of each of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company Obligors or any affiliate of the Company Obligors or any person in privity with the Company Obligors or any affiliate of the Company) Obligors), 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 in respect ofAct, any debt securities issued or guaranteed by the Company guarantees thereof (other than the Securities) Notes and the Parent Guarantee), or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on transaction, until after the Closing Date.
(ji) The Company Neither of the Obligors 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 Issuer to facilitate the sale or resale of the Securities.
(j) Each of the Obligors will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and will use their commercially reasonable best efforts to cause its directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(k) The Obligors agree to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Notes, including any stamp or transfer taxes in connection with the original issuance and sale of the Notes; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Notes; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states, and the preparation of a blue sky memorandum (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration, qualification and preparation); (vi) any filings required to be made with the FINRA including filing fees (and including the reasonable fees and expenses of counsel for the Underwriters relating to such filings up to a maximum amount of $50,000); (vii) the transportation and other expenses incurred by or on behalf of the representatives of the Obligors in connection with presentations to prospective purchasers of the Securities; (vii) the fees and expenses of the Issuer’s and the Parent’s accountants and the fees and expenses of counsel (including local and special counsel) for the Obligors; and (x) all other costs and expenses incident to the performance by the Obligors of their obligations hereunder.
(l) The Obligors will use the net proceeds received by the Obligors from the sale of the Securities in the manner specified in the Preliminary Prospectus and the Final Prospectus under the caption “Use of Proceeds.”
(m) The Parent will use its best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2022 and the taxable year ending December 31, 2023, as a REIT under the Code and the Issuer will use its best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2022 and the taxable year ending December 31, 2023, as a partnership under the Code.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III IV hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees Each of the Issuer and the Guarantors jointly and severally agree with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Issuer will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Issuer will promptly advise the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Issuer will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will Issuer shall prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in a form approved by you and shall file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(ciii) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made at such time, not misleading, the Company Issuer 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.
(div) If, at any time when a prospectus the Final 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly Issuer will (1) promptly notify the Representatives of any such event; , (2) as soon as practicable, prepare and file with the Commission, subject to the second sentence of paragraph (ai) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 SupplementProspectus; and (4) promptly supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ev) As soon as practicable, the Company Issuer will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company Issuer and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fvi) Upon request, the Company The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gvii) The Company Issuer and each Guarantor will arrange, if necessary, cooperate with you and counsel for the Underwriters in connection with the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, or taxation in any jurisdiction where it is not now so subject.
(iviii) The Company Issuer and the Guarantors 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 issued by any of them to facilitate the sale or resale of the Securities.
(ix) The Issuer agrees to pay the costs and expenses relating to the following matters: (1) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Free Writing Prospectus, each Preliminary Prospectus, the Final Prospectus, and each amendment or supplement to any of them; (2) 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 Free Writing Prospectus, each Preliminary Prospectus, the Final 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 preparation, printing, authentication, issuance and delivery of certificates for 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 offering of the Securities; (5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such registration and qualification); (7) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such filings); (8) transportation and other expenses incurred by or on behalf of Issuer representatives in connection with presentations to prospective purchasers of the Securities; (9) the fees and expenses of the Issuer’s accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer and the Guarantors; and (10) all other costs and expenses incurred by the Issuer and the Guarantors that are incidental to the performance by the Issuer and the Guarantors of their respective obligations hereunder.
(x) Each of the Issuer and each Guarantor agrees that, unless it has obtained or obtainswill obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyIssuer, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Issuer with the Commission or retained by the Company Issuer under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 5(ii) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III IV hereto. Any such free writing prospectus consented to by the Representatives or the Company Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Issuer and each Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters each of you that:
(a) Prior to the termination of the offering of the SecuritiesNotes , the Company will not file any amendment of the Registration Statement nor will the Company file any supplement to the Prospectus (except for (i) an amendment or supplement consisting solely of the filing of a document under the Exchange Act, (including ii) a supplement relating to an offering of securities other than the Final Prospectus Supplement Notes, or any Preliminary Prospectus Supplement(iii) a supplement relating solely to the Base Prospectus pricing and related information concerning a particular sale of Notes) unless the Company has furnished you a copy of such proposed amendment or supplement for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission SEC as required pursuant to Rule 424 under the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filingSecurities Act. The Company will promptly advise the Representatives you (1i) when each supplement to the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)424 under the Securities Act, (2ii) when, prior to termination of the offering of the Securities, when any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff SEC for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose purpose, and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will promptly (upon filing thereof) furnish you a copy of any amendment or supplement to the Prospectus or Registration Statement not furnished to you for prior review pursuant to exceptions (i), (ii) or (iii) of the first sentence of this subsection (a). The Company will use its 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, any event occurs as a result of which the Final Prospectus Supplement Registration Statement, as then supplemented amended, or the Prospectus, as then supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to amend the Registration Statement or to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules and regulations thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify you to suspend solicitation of offers to purchase Notes (and, if so notified by the Representatives of Company, you shall forthwith suspend such event; solicitation and cease using the Prospectus as then amended or supplemented), (2ii) prepare and file with the CommissionSEC, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance; (3) 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 Supplement; , and (4iii) supply any such amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request. If such amendment or supplement, and documents, certificates and opinions furnished to you pursuant to paragraph (g) of this Section 4 in connection with the preparation or filing of such amendment or supplement are reasonably satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the SEC 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.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives you an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158158 under the Securities Act.
(fd) Upon requestUntil the termination of the offering of the Notes, the Company will timely file all documents, and any amendments to previously filed documents, required to be filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act.
(e) The Company will furnish to the Representatives you and counsel for the Underwritersto your counsel, 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) amendment thereto which shall become effective and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, as many copies of each Preliminary any preliminary Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for endeavor to qualify the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives you may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthorityNotes , Inc., in connection with its review of the offering; provided that in no event shall connection therewith the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified as a foreign corporation or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(ig) The Company agrees thatshall furnish to you such documents, unless it has obtained or obtains, as the case may be, the prior written consent certificates of officers of the Representatives, Company and (ii) each Underwriter, severally and not jointly, agrees with opinions of counsel for the Company thatrelating to the business, unless it has obtained or obtains, as the case may be, the prior written consent operations and affairs of the Company, it has the Registration Statement, any preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company and you of the respective obligations of each hereunder and thereunder as you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not made any sale of any Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement, including the fees and will not make any offer disbursements of its accountants and counsel, the cost of printing and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and all other documents relating to the Securities offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel, incurred in connection with the qualification of the Notes for sale and determination of eligibility for investment of the Notes under the securities or Blue Sky laws of each such jurisdiction as the Agent may reasonably designate, the fees and disbursements of the Trustee and the fees of any agency that would constitute rates the Notes, (ii) reimburse you on an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed as-needed basis for all out-of-pocket expenses incurred by you and approved by the Company in advance, in connection with the Commission or retained by offering and the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent sale of the parties hereto shall Notes, and (iii) be deemed to have been given responsible for the reasonable fees and expenses of your counsel incurred in respect connection with the offering and sale of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingNotes.
(i) The Each acceptance by the Company of an offer to purchase Notes (the date of each such acceptance, an "Acceptance Date") will be deemed to be a representation and warranty to you by the Company that neither the Registration Statement nor the Prospectus, as then amended or supplemented, fails to reflect any facts or events which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement or the Prospectus, as then amended or supplemented, and/or includes any untrue statement of a material fact, or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of you specifically for use in connection with the preparation of the Registration Statement and the Prospectus or any amendments thereof or supplements thereto.
(j) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by (i) an amendment or supplement consisting solely of the filing of a document under the Exchange Act unless such amendment or supplement sets forth or incorporates by reference financial statements for a fiscal quarter or unless otherwise requested by you, (ii) a supplement relating to an offering of securities other than the Notes, or (iii) a supplement relating solely to pricing and related information concerning a particular sale of Notes), the Company will deliver or cause to be delivered forthwith to you a certificate of it signed by its Chairman of the Board or its President or a Vice President and its Treasurer or an Assistant Treasurer, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form reasonably satisfactory to you, to the effect that the statements contained in the certificate that was last furnished to you by it pursuant to either Section 5(d) or this Section 4(j) are true and correct at the time of the effectiveness of such amendment or the filing of such supplement as though made at and as of such time (except that (i) the last day of the fiscal quarter for which financial statements of the Company were last filed with the SEC shall be substituted for the corresponding date in such certificate and (ii) such statements shall 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) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(d) but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the SEC and 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.
(k) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by (i) an amendment or supplement consisting solely of the filing of a document under the Exchange Act unless such amendment or supplement sets forth or incorporates by reference financial statements for a fiscal quarter or unless otherwise requested by you, (ii) a supplement relating to an offering of securities other than the Notes, or (iii) a supplement relating solely to pricing and related information concerning a particular sale of Notes), the Company shall furnish or cause to be furnished forthwith to you a written opinion of its counsel satisfactory to you, and, at your option, Xxxxxxxx & Xxxxxxxx shall furnish to you a written opinion, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form satisfactory to you, of the same tenor as the opinion referred to in Sections 5(b) and 5(c), respectively, 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, counsel last furnishing such an opinion to you may furnish you with a letter to the effect that you may rely on such 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) Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information or such amended or supplemental information is incorporated by reference in the Registration Statement or the Prospectus, the Company shall cause Xxxxx & Young LLP, independent auditors, forthwith to furnish you a letter, dated the date of the effectiveness of such amendment or the date of filing of such supplement, in form satisfactory to you, of the same tenor as the letters 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 that if the Registration Statement or the Prospectus is amended or supplemented solely to include or incorporate by reference unaudited financial information as of and for a fiscal quarter, Ernst & Young LLP may limit the scope of its letter, which shall be satisfactory in form to you, to the unaudited financial statements included or incorporated by reference in such amendment or supplement, unless any other information included or incorporated by reference therein of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) is of such a nature that, in your reasonable judgment, such letter should cover such other information.
(m) During the period, if any, specified in any Terms Agreement, the Company shall not, without the prior written consent of the RepresentativesPurchaser, offerissue or announce the proposed issuance of any of its Debt Securities, sellincluding Notes, contract which Debt Securities have terms substantially similar 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 those 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 in respect of, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention Notes being purchased pursuant to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes (including by way of resale by the Purchaser of Notes), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base 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 (iii) a supplement relating to an offering of Securities other than the Notes) unless the Company has furnished you a copy for your review prior to filing and given you a reasonable opportunity to comment on any such proposed amendment or supplement, and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives you of such timely filing. The Company will promptly advise the Representatives you (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the any offering of the SecuritiesNotes, any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify you to suspend solicitation of offers to purchase Notes (and, if so notified by the Representatives of Company, you shall forthwith suspend such event; solicitation and cease using the Prospectus as then supplemented), (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; compliance and (4iii) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to you pursuant to paragraph (f) of this Section 4 in connection with the preparation or filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives you an earnings statement or statements of the Company company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158the applicable rules and regulations thereunder.
(fd) Upon request, the The Company will furnish to the Representatives you and counsel for the Underwritersyour counsel, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives you 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 offering of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectNotes.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with each of the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed or transmitted for filing, in a form approved by the Representatives with the Commission Representative, pursuant to Rule 424 under the applicable paragraph of Rule 424(b) within the time period prescribed Act and will provide evidence satisfactory notify you promptly of such filing or mailing. During the period for which a prospectus relating to the Representatives of such timely filing. The Securities is required to be delivered under the Act, the Company will promptly advise the Representatives Representative (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3ii) when any subsequent supplement to the Prospectus has been filed or transmitted for filing, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose purpose, and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an thereof. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus (other than any prospectus supplement relating to the offering of securities registered under the Registration Statement other than the Securities and permitted by Section 4(g) hereof, or any document required to be filed under the Exchange Act which upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus) unless the Company has furnished to you a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object after receiving a reasonable notice from the Representative thereof. The Company will furnish to you prior to the filing thereof a copy of any such prospectus supplement and any document which upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives Representative of such event; , (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which that will correct such statement or omission or an amendment or supplement that will effect such compliance; compliance and (3) use its best efforts to have supply any amendment supplemented Prospectus 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you Representative in such quantities as you they may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives Representative as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings earning statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, for a twelve-month period beginning after the date of the Prospectus Supplement filed pursuant to Rule 424 under the Act, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish has previously furnished to the Representatives and counsel for the Underwriters, without charge, Representative a signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement as originally filed and of each amendment thereto, including the statement on Form T-1 of the Trustee and all powers of attorney, consents and exhibits filed therewith (without other than exhibits theretoincorporated by reference), and will deliver to the Representative 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 (including Act, all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto quantities as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrangefurnish such information, if necessary, for the qualification of execute such instruments and take such action as may be required to qualify the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthoritySecurities; PROVIDED, Inc.HOWEVER, in connection with its review of the offering; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(f) So long as the Securities are outstanding, the Company will furnish (or cause to be furnished) to the Representative, upon request, copies of (i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent all reports to stockholders of the Representatives, Company and (ii) each Underwriter, severally all reports and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(g) During the period beginning from the date of this Agreement and continuing to and including the earlier of (i) The the termination of trading restrictions on the Securities, as notified to the Company will notby the Representative, or (ii) the thirtieth day after the Closing Date for the Securities, the Company shall not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of the RepresentativesRepresentative, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably consent shall not be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Dateunreasonably withheld.
(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.
Appears in 1 contract
Samples: Underwriting Agreement (Niagara Mohawk Power Corp /Ny/)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 without the prior consent of the Representatives, which you reasonably objectwill not be unreasonably withheld, conditioned or delayed. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent Upon the issuance of any such stop order or the suspension occurrence of any such qualification andsuspension or objection to the use of the Registration Statement described in (iv) and (v) above, if issued, the Company will use its reasonable best efforts to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the Final Term Sheet and will file filing of the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made 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 you in such quantities as you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in the use of the Final Prospectus SupplementProspectus; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) 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.
(fe) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)) in connection with sales of the Securities, as many copies of each the Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will use its reasonable best efforts to arrange, if necessary, for the qualification of the Securities for sale under (or obtain exemptions from the application of) the state securities or blue sky laws or Canadian provincial securities laws of such those jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any such jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any such jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ig) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect ofAct, any debt other Common Shares or any securities issued convertible into, or guaranteed by exercisable, or exchangeable for, Common Shares, or effect a reverse stock split, recapitalization, share consolidation, reclassification or similar transaction affecting the Company (other than the Securities) outstanding Common Shares; or publicly announce an intention to effect any such transaction transaction, for a period commencing of 90 days after the date of this Agreement, provided, however, that the Company may (i) effect the transactions contemplated hereby, (ii) issue Common Shares, options to purchase Common Shares, restricted share units settled in Common Shares, or other awards, or issue Common Shares upon exercise of options, vesting of restricted share units or the settlement of other awards, pursuant to any share option, share bonus or other share plan or arrangement (“Share Plans”), provided such Share Plans are described in the Registration Statement, the Disclosure Package and the Prospectus, (iii) issue Common Shares pursuant to the conversion or exchange of convertible or exchangeable securities outstanding on the date hereof or the exercise of options or vesting of restricted share units issued pursuant to the Share Plans, (iv) file a registration statement on Form S-8 to register Common Shares issuable pursuant to the terms of a Share Plan or arrangement described in the Registration Statement, the Disclosure Package and ending on the Closing DateProspectus and (v) issue Common Shares in connection with any joint venture, commercial or collaborative relationship or the acquisition or license by the Company of the securities, businesses, property or other assets of another person or entity or pursuant to any employee benefit plan as assumed by the Company in connection with any such acquisition; provided, however, that in the case of clause (v), (A) such Common Shares shall not in the aggregate exceed 10% of the Company’s outstanding Common Shares immediately following the consummation of the offering of the Securities contemplated by this Agreement and (B) the recipients thereof provide to the Representatives a signed Lock-Up Agreement.
(jh) The Company will use its reasonable best efforts to maintain the listing for the Common Shares on The Nasdaq Global Market.
(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 agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on The Nasdaq Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification in an amount not to exceed $5,000 in the aggregate); (vii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings in an amount not to exceed $25,000 in the aggregate); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities except that 50% of the cost of any aircraft chartered in connection with the roadshow will be paid by the Underwriters; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, which will not be unreasonably withheld, conditioned or delayed, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the 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 II hereto and 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 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) 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.
(l) The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with the Rules 456(b) and 457(r) under the Securities Act.
(m) If, after the date of this Agreement and during any time when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), the Company receives notice pursuant to Rule 401(g)(2) under the Securities Act from the Commission or otherwise ceases to be eligible to use the automatic shelf registration form, the Company shall promptly advise the Representatives in writing of such notice or ineligibility and will (i) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, (ii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective by the Commission as soon as practicable and (iii) promptly notify the Representatives in writing of such effectiveness.
Appears in 1 contract
Samples: Underwriting Agreement (Merus N.V.)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. (I) The Company agrees with the several Underwriters each Underwriter that:
(a) The Company will furnish to each Underwriter and to Counsel for the Underwriters, without charge, during the period referred to in paragraph (e) below, as many copies of each of the Preliminary Prospectus, any Issuer Free Writing Prospectus and any amendments and supplements thereto (to be delivered electronically) and the Final Prospectus as they may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(b) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the SecuritiesNotes, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bc) The Company will To prepare a final term sheet, in the Final Term Sheet form of Schedule I hereto, containing solely a description of final terms of the Notes and will the offering thereof, in a form approved by you and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under filing of the Act (including in circumstances where such requirement may be satisfied Final Prospectus pursuant to Rule 172424(b), any event occurs as a result of which the Final Prospectus Supplement as then 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 in the light of the circumstances under which they were made 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 if it shall be necessary to supplemented; (ii) amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Disclosure Package to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplementomission; and (4iii) supply any amended amendment or supplemented Final Prospectus Supplement supplement to you in such quantities as you may reasonably request.
(e) As soon If at any time prior to the earlier of (i) completion of the sale of the Notes by the Underwriters (as practicabledetermined by the Representatives) or (ii) six months from the date hereof, any event occurs as a result of which the Final Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it should be necessary to amend or supplement the Final Prospectus (including any document incorporated by reference therein which was filed under the Exchange Act) to comply with the Exchange Act or the rules thereunder or other applicable law, including in connection with the use or delivery of the Final Prospectus, the Company will promptly notify the Representatives of the same and, subject to the requirements of paragraph (b) of this Section 4, will prepare and provide to the Representatives pursuant to paragraph (a) of this Section 4 an amendment or supplement which will correct such statement or omission or effect such compliance and, if such an amendment or supplement is required to be filed under the Exchange Act and is to be incorporated by reference in the Final Prospectus, will file such amendment or supplement with the Commission. The Representatives will promptly advise the Company, in writing, of the completion of the initial distribution of the Notes.
(f) The Company will, during the period when the Final Prospectus is required to be delivered under the Securities Act and during which the Company is subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, timely file all Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other reports, statements, documents, registrations, filings or submissions required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(g) The Company will make generally available to its security holders and to as soon as practicable, but not later than 90 days after the Representatives close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 under the Securities Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the “effective date” (as defined in such Rule 158) of the Act and Rule 158Registration Statement.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gh) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as cooperate with the Representatives may designate, will maintain such qualifications in effect so long as required and use its reasonable best efforts to permit the Notes to be eligible for the distribution of the Securities clearance and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectsettlement through DTC.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, 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 Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(I)(c) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(II) Each Underwriter, on behalf of itself and each of its affiliates that participates in the initial distribution of the Notes, severally represents to and agrees with the Company that it and each such affiliate:
(a) in relation to each Member State of the European Economic Area that has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Notes described in the Preliminary Prospectus to the public in that Relevant Member State other than:
(i) The Company will notto any legal entity which is a “qualified investor” as defined in the Prospectus Directive;
(ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), without as permitted under the Prospectus Directive, subject to obtaining the prior written consent of the Representativesunderwriters for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive, 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 provided that no such offer of Notes shall require the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) publication by the Company or any affiliate underwriter of a prospectus pursuant to Article 3 of the Company Prospectus Directive, or any person in privity with the Company or any affiliate a supplement to a prospectus pursuant to Article 16 of the Company) directly Prospectus Directive. For purposes of this provision, the expression an “offer of Notes to the public” in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or indirectlysubscribe for the Notes, as the expression may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the filing (or participation 2010 PD Amending Directive, to the extent implemented in the filingRelevant Member State) of a registration statement with and includes any relevant implementing measure in each Relevant Member State. The expression “2010 PD Amending Directive” means Directive 2010/73/EU;
(b) will only distribute the Commission Preliminary Prospectus to, and will only direct the Preliminary Prospectus at, persons in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position the United Kingdom that are qualified investors within the meaning of Section 16 Article 2(1)(e) of the Exchange Act in respect of, any debt securities issued or guaranteed by Prospectus Directive that are also (i) investment professionals falling within Article 19(5) of the Company Financial Services and Markets Xxx 0000 (other than Financial Promotion) Order 2005 (the Securities“Order”) or publicly announce an intention (ii) high net worth entities, and other persons to effect any whom it may lawfully be communicated, falling within Article 49(2)(a) to (d) of the Order (each such transaction for person being referred to as a period commencing on the date hereof and ending on the Closing Date.“relevant person”); and
(jc) The Company have not offered or sold the Notes and will not takeoffer or sell the Notes, directly or indirectly, any action designed in Japan or to or that would constitute for the account of any resident of Japan (which term, as used in this paragraph means any person resident in Japan, including any corporation or that might reasonably be expected to cause or result in, other entity organized under the Exchange Act or otherwiselaws of Japan), stabilization or manipulation except (i) pursuant to an exemption from the registration requirements of the price Financial Instruments and Exchange Law and (ii) in compliance with any other applicable requirements of any security of the Company to facilitate the sale or resale of the SecuritiesJapanese law.
Appears in 1 contract
Samples: Underwriting Agreement (CSX Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d424(b) within the time required by such Rule.
(c) If there , any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) 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 158158 under the Securities Act.
(fe) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has obtained or obtains, as the case may beOther than pursuant to this Agreement, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the RepresentativesCitigroup 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 SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the Company may issue and sell Common Stock (i) pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, and (iii) not to exceed 5% of the outstanding shares of Common Stock of the Company to acquire additional businesses or assets in mergers or other acquisition transactions. Also, the Company may file registration statements required pursuant to registration rights agreements to which it is a period commencing on party at the date hereof and ending on the Closing DateExecution Time.
(jh) 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.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“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 Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the Securities Act (“Rule 433”); provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause any Preliminary Prospectus and the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when any Preliminary Prospectus and the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal 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 Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, any debt securities issued or guaranteed by the Company (other that would mature more than one year after the Securities) Business Day set forth on Schedule I hereto and that are substantially similar to the Securities or publicly announce an intention to effect any such transaction for a period commencing transaction, until the Business Day set forth on the date hereof and ending on the Closing DateSchedule 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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) any filings required to be made with the NASD, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to file any amendment to the Registration Statement necessary in connection with the offer and sale of the Securities. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus Supplement or any Preliminary Prospectus SupplementRule 462(b) to the Base Prospectus 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 which you reasonably object. Subject to the foregoing sentence, if filing of the Prospectus is otherwise required under Rule 424(b), the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; compliance and (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) 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 Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(if) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction transaction, for a period commencing of 30 days after the date of the 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 shares of its capital stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(g) The Company will use its best efforts to meet the requirements to qualify as a "real estate investment trust" under the Code for the taxable year in which sales of the Securities are to occur.
(h) The Company, during the period when the Prospectus is required to be delivered under the Act or the Exchange Act in connection with sales of the Securities, will file all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the time period prescribed by the Exchange Act.
(i) The Company will use its best efforts to list the Securities on the date hereof and ending on the Closing DateNew York Stock Exchange.
(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 will use the net proceeds from the sale of Securities in the manner specified in the form of the prospectus supplement previously furnished to the Representatives.
(l) The Company has furnished or will furnish to you "lock-up" letters signed by Chaim Katzman, Doron Valero, Howard Sipzner, M.G.N. (USA), Xxx., Xxxxt (0000), Xxx., Xxxxx-Xxxxx (1982) Ltd., Silver Maple (2001), Inc., Ficus, Inc. and AH Investments US, L.P. in forms mutually satisfactory to such persons and the Representatives.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters Purchaser that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereof, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably objectobject in writing. Subject to the foregoing sentence, if the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the Prospectus is otherwise required under Rule 424(b), the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives Purchaser of such timely filing. The Company will promptly advise the Representatives Purchaser (1i) when the Final Prospectus SupplementRegistration Statement, if not effective at the Execution Time, and any amendment or thereto, shall have become effective, (ii) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2i) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; compliance and (4ii) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Purchaser 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 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives Purchaser and counsel for the UnderwritersPurchaser, without charge, signed copies of manually executed signature pages to the Registration Statement, it being understood that the originals of such pages will be retained in the Company's files as required by the rules of the Commission, and copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter the Purchaser or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Purchaser may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringtransactions contemplated hereby. The Company will pay all transfer taxes as may be imposed on the Purchaser in connection with their purchase of Redeemable Securities pursuant hereto.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Purchaser may designate, and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthoritySecurities; provided, Inc.however, in connection with its review of the offering; provided that in no event shall the Company shall not be obligated to qualify to do business in file any jurisdiction where it is not now so qualified or to take any action that would subject it general consent to service of process in suits, other than those arising out of the offering or sale of the Securities to qualify as a foreign corporation in any jurisdiction where in which it is not now so subjectqualified.
(if) The Company agrees that, unless it has obtained will mail or obtains, as cause to be mailed not later than the case may be, date of execution hereof the prior written consent Notice of Redemption by first class mail to the registered holders of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, Redeemable Securities as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating close of business on the business day prior to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required date of execution hereof, which mailing will conform 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; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable the Certificate of Incorporation. The Company will not withdraw or revoke the Notice of Redemption or attempt to do so.
(g) The Company will advise the Purchaser daily of the amount of Redeemable Securities surrendered in the previous day for redemption or for conversion.
(h) The Company will not take any Permitted Free Writing Prospectus, including action the effect of which would be to require an adjustment in respect the conversion price of timely filing with the Commission, legending and record keepingRedeemable Securities.
(i) The Company will not, prior to the Redemption Date (and, if the aggregate number of the Purchased Securities exceeds 194,873 shares, for an additional period of 90 days following the Redemption Date), without the prior written consent of the RepresentativesPurchaser, (A) offer, pledge, sell, contract to sell, pledgesell 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, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including or announce the filing (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 in respect offering of, any debt securities issued or guaranteed by the Company shares of Common Stock (other than the Securities) or publicly announce an intention any securities convertible into or exercisable or exchangeable for Common Stock (whether such shares or any such securities are now owned by the Company or are hereafter acquired) or (B) enter into any swap or other arrangement that transfers to effect another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction for a period commencing on the date hereof and ending on the Closing Date.
described in clause (jA) The Company will not takeor (B) above is to be settled by delivery of Common Stock or such other securities, 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 in cash or otherwise; provided, stabilization however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, incentive compensation program or manipulation of the price of any security dividend reinvestment plan of the Company to facilitate in effect at the sale Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or resale the exercise of warrants outstanding at the SecuritiesExecution Time.
Appears in 1 contract
Samples: Standby Agreement (Gatx Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to Promptly following the termination execution of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentencethis Agreement, the Company will cause the Final Prospectus SupplementProspectus, properly completedincluding as part thereof a prospectus supplement relating to the Purchased Bonds (the "PROSPECTUS SUPPLEMENT"), and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to Rule 424 under the applicable paragraph Act, and the Company will promptly advise the Representatives when such filing has been made. Prior to such filing, the Company will cooperate with the Representatives in the preparation of Rule 424(b) within the time period prescribed and will provide evidence satisfactory Prospectus Supplement to assure that the Representatives have no reasonable objection to the Representatives of such timely filing. form or content thereof when filed.
(b) The Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3ii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment or supplement to the Final Prospectus Supplement or for any additional information, (4iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Purchased Bonds for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will not file any amendment to the Registration Statement or amendment or supplement to the Prospectus unless the Company has furnished the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement without the consent of the Representatives, which consent shall not be unreasonably withheld. The Company will use its 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rulethereof.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Purchased Bonds is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then amended or supplemented would include any an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Registration Statement or the Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery and regulations of the Final Prospectus SupplementCommission under such Acts, 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 (ab) of this Section 54, an amendment or supplement or new registration statement which that will correct such statement or omission or an amendment or supplement that will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) 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.
(f) Upon request, the The Company will furnish without charge to (i) each of the Representatives and counsel for the Underwriters, without charge, Underwriters a signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (but without exhibits theretoincorporated by reference), as originally filed, all amendments thereto filed prior to the Closing Date and all Incorporated Documents (including exhibits, other than exhibits incorporated by reference), (ii) each other Underwriter a conformed copy of the Registration Statement (but without exhibits), as originally filed, all amendments thereto (but without exhibits) and all Incorporated Documents (but without exhibits other than the Company's latest Annual Report to shareholders) and (iii) each Underwriter as many copies of the Prospectus, the Prospectus Supplement thereto and, so long as delivery of a prospectus or supplement thereto by an Underwriter or dealer may be required by under the Act Act, any amendments thereof and supplements thereto (including in circumstances where such requirement may be satisfied pursuant to Rule 172but without Incorporated Documents or exhibits), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement soon as available and each Issuer Free Writing Prospectus and any amendment or supplement thereto in such quantities as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, for the qualification of the Securities Purchased Bonds for sale under the laws of such jurisdictions within the United States as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthorityPROVIDED, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, suits (other than those arising out of the offering or sale of the Securities Purchased Bonds) in any jurisdiction where it is not now so subject. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the qualification of the Purchased Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(if) The Company agrees thatto pay the costs and expenses relating to the following matters: (i) the preparation of the Prospectus, unless it has obtained the issuance of the Purchased Bonds and the fees of the Trustee or obtainsCo-Trustee; (ii) the preparation, printing or reproduction of the Prospectus and each amendment or supplement thereto; (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus, and all amendments or supplements to it, as may be reasonably requested for use in connection with the case may beoffering and sale of the Purchased Bonds; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the prior written consent Purchased Bonds, including any stamp or transfer taxes in connection with the original issuance and sale of the Purchased Bonds; (v) 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 Purchased Bonds; (vi) any registration or qualification of the Purchased Bonds for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Purchased Bonds; (viii) the fees and expenses of the Company's accountants and counsel (including local and special counsel); (ix) the fees and expenses of any rating agencies rating the Purchased Bonds and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(g) The Company will, if requested by the Representatives, use its best efforts to cause the Purchased Bonds to be listed on the New York Stock Exchange.
(h) During the period beginning from the date of this Agreement and continuing to and including the later of (i) the termination of trading restrictions on the Purchased Bonds, as notified to the Company by the Representatives, and (ii) each Underwriterthe Closing Date, severally and not jointly, agrees with the Company thatwill not offer, unless it has obtained sell, contract to sell or obtains, as the case may be, the prior written consent otherwise dispose of any debt securities of the Company, it has not made Company which mature more than one year after the Closing Date and will not make any offer relating which are substantially similar to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will notPurchased Bonds, without the prior written consent of the Representatives; PROVIDED, offerHOWEVER, 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 that in no event shall 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 in respect of, any debt securities issued or guaranteed by the Company (other foregoing period extend more than the Securities) or publicly announce an intention to effect any such transaction for a period commencing on fifteen calendar days from the date hereof and ending on the Closing Dateof this Agreement.
(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.
Appears in 1 contract
Agreements. The Company Issuer agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Issuer will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) under the Securities Act within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company Issuer will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Issuer will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.;
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d424(b) within under the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made at such time not misleading, the Company will Issuer 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;
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery deliver of the Final Prospectus SupplementProspectus, the Company Issuer promptly will (1i) notify the Representatives of any such event; (2ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.;
(ed) As soon as practicable, the Company Issuer will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company Issuer and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.158 under the Securities Act;
(fe) Upon request, the Company The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement with conformed signatures (including exhibits thereto) and to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company Issuer will pay the expenses of printing or other production of all documents relating to the offering.;
(gf) The Company Issuer will use its reasonable best efforts to arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, reasonably designate and will use its reasonable best efforts to maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Issuer be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.;
(g) The Issuer will not, without the prior written consent of each of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Issuer or any affiliate of the Issuer or any person in privity with the Issuer or any affiliate of the Issuer) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other 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 90 days after the date of the Underwriting Agreement, provided, however, that the Issuer may (i) issue and sell Common Shares pursuant to any employee stock option or incentive plan, stock ownership or purchase plan or dividend reinvestment plan of the Issuer in effect at the Execution Time, (ii) issue, or agree to issue, any Common Shares or any security convertible into or exercisable for Common Shares in connection with any joint ventures, marketing or distribution arrangements, collaboration agreements or intellectual property license agreements, (iii) issue, or agree to issue, any Common Shares or any security convertible into or exercisable for Common Shares in connection with the acquisition by the Issuer or its subsidiaries of not less than a majority or controlling portion of the securities, business, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Issuer in connection with such acquisition, and (iv) issue and sell any Common Shares pursuant to the subscription rights offering described in the Disclosure Package (the “Rights Offering”); provided further that in the case of clauses (ii) and (iii) the aggregate number of Common Shares that the Issuer may sell or issue shall not exceed 5% of the Common Shares issued and outstanding immediately following the transactions contemplated by this Agreement;
(h) The Issuer 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 Issuer to facilitate the sale or resale of the Securities;
(i) The Company Issuer agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on The NASDAQ Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings, with such fees and expenses of counsel contained in clauses (vi) and (vii) not to exceed $25,000 in the aggregate); (viii) the transportation and other expenses incurred by or on behalf of Issuer representatives in connection with presentations to prospective purchasers of the Securities, provided, however, that the Issuer shall only be responsible for one half of the cost and expenses of any aircraft chartered in connection with the “road show” for the Securities and the Underwriters shall be responsible for the remaining one half; (ix) the fees and expenses of the Issuer’s accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer; and (x) all other costs and expenses incident to the performance by the Issuer of its obligations hereunder;
(j) The Issuer agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has or obtainsshall have obtained, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyIssuer, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) Free Writing Prospectus required to be filed by the Company Issuer with the Commission SEC or retained by the Company Issuer under Rule 433, other than a free writing prospectus containing 433 under the information contained in the Final Term SheetSecurities Act; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretohereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Issuer 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 CommissionSEC, legending and record keeping.; and
(ik) The Issuer will notify promptly the Representatives if the Issuer ceases to be an Emerging Growth Company will not, without at any time prior to the prior written consent later of (a) completion of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate distribution 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 Securities within the meaning of Section 16 the Securities Act and (b) completion of the Exchange Act 90-day restricted period referred to in respect of, any debt securities issued or guaranteed by the Company (other than the SecuritiesSection 5(g) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(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.hereof;
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(ai) Prior to the termination of the offering of the Offered Securities, the Company will not use or file any Issuer Free Writing Prospectus nor file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished you the Representative a copy for your the Representative’s review prior to such use or filing and will not file any such proposed amendment or supplement to which you the Representative reasonably objectobjects. Subject to the foregoing sentence, sentence the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing424. The Company will promptly advise the Representatives Representative (1a) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424, (2b) when, prior to the termination of the offering of the Offered Securities, any amendment to the Registration Statement shall have been filed or become effective, (3c) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4d) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, (e) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act and (5f) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any preliminary prospectus supplement or the suspension of Prospectus or suspending any such qualification of the Offered Securities and, if any such order is issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objectionthereof, includingor, if necessarysubject to Section 4(i), by filing will file an amendment to the Registration Statement or will file a new registration statement and using use its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will prepare If, at any time prior to the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Closing Date, any event occurs an event or development as a result of which the General Disclosure Package as then amended or supplemented would include an any untrue statement statements 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 circumstances then prevailingunder which they were made, not misleadingmisleading or if it shall be necessary to amend or supplement the General Disclosure Package to comply with the Securities Act or the Exchange Act or the respective rules thereunder, the Company promptly will notify promptly prepare and file with the Representatives so that any use Commission (to the extent required), subject to the first sentence of the Disclosure Package may cease until it is amended paragraph (i) of this Section 4, an amendment or supplementedsupplement which will correct such statement or omission or effect such compliance.
(diii) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to by way of Rule 172172 under the Securities Act and any other similar rule), any event occurs as a result of which the Final Prospectus Supplement as then amended or supplemented would include any untrue statement statements of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, misleading or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or amend or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (ai) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(eiv) As soon as practicable, the Company will make generally available to its security holders securityholders and to the Representatives 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 158158 under the Securities Act.
(fv) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies a copy of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, as many copies of each Preliminary Prospectus Supplementany preliminary prospectus or related preliminary prospectus supplement, the Final Prospectus Supplement and any amendments thereof and supplement thereto and each Issuer Free Writing Prospectus and any amendment or supplement thereto (if applicable) as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating related to the offering.
(gvi) The Company will arrange, if necessary, for use its reasonable efforts to qualify the qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives Representative may designatereasonably designate in writing to the Company not later than the Closing Date, and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringOffered Securities; provided that in no event shall connection therewith the Company shall not be obligated required to qualify to do business as a foreign corporation or as a dealer in any jurisdiction where it is not now so qualified securities or to take execute or file any action that would subject it consent to service of process in suits, other than those arising out of the offering any jurisdiction or sale of the Securities subject itself to taxation in any jurisdiction where if it is not now otherwise so subject.
(ivii) The Company agrees that, unless it has obtained or obtains, as Until the case may be30th day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the RepresentativesXxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, such consent not to be unreasonably withheld or delayed, offer, sell, sell or contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including 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 in respect 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 commencing on sale or contract to sale, the date hereof and ending on offering of, any debt securities covered by the Closing DateRegistration Statement or any other registration statement filed under the Securities Act or any other debt securities issued by the Company.
(jviii) The Company will not directly or indirectly use the proceeds of the sale of the Offered Securities hereunder, or lend, contribute or otherwise make available such proceeds to a subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country, (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions, or (iv) in any other manner in contradiction with the description in the Registration Statement, the General Disclosure Package and the Prospectus.
(ix) The Company will not take, directly or indirectly, any action designed to cause or result in, or that would constitute has constituted or that might reasonably be expected to cause or result inconstitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security securities of the Company to facilitate the sale or resale of the Offered Securities.
(x) The Company shall use commercially reasonable efforts to obtain the approval of DTC to permit the Offered Securities to be eligible for “book-entry” transfer and settlement through the facilities of DTC, and agrees to comply with all of its agreements set forth in the representation letters of the Company to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(xi) The Company will use the net proceeds received by it from the sale of the Offered Securities in the manner specified in the General Disclosure Package and the Prospectus under the caption “Use of Proceeds”.
(xii) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus Supplement, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging, including any form of electronic distribution) of such copies of the Registration Statement, each Preliminary Prospectus Supplement, 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 Offered Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Offered Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Offered Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Offered Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Offered Securities on the New York Stock Exchange; (vi) any registration or qualification of the Offered Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification not to exceed $10,000); (vii) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for “book-entry” transfer, and fees and expenses incidental to the performance by the Company of its other obligations under this Agreement (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Offered Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Olin Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereof, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 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 Prospectus is otherwise required under Rule 424(b), the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives Underwriters of such timely filing. The Company will promptly advise the Representatives Underwriters (1A) when the Final Prospectus SupplementRegistration Statement, if not effective at the Execution Time, and any amendment or thereto, shall have become effective, (B) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2C) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3D) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4E) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5F) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Underwriters 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 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriters may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any the fee of the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(if) The Company agrees that, unless it has obtained or obtains, will apply the net proceeds from the sale of its Securities substantially in accordance with the description set forth in the Prospectus and any Preliminary Prospectus under the heading "Use of Proceeds."
(g) The Company confirms as the case may be, the prior written consent of the Representativesdate hereof that it is in compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and (ii) each Underwriter, severally and not jointly, the Company further agrees that if it commences engaging in business with the Company that, unless it government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement becomes or has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to become effective with the Securities that would constitute an Issuer Free Writing Prospectus and Exchange Commission or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission Florida Department of Banking and Finance (the "Department"), whichever date is later, or retained by the Company under Rule 433, other than a free writing prospectus containing if the information contained reported in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing ProspectusesProspectus, if any, included concerning the Company's business with Cuba or with any person or affiliate located in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or Cuba changes in any material way, the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treatprovide the Department notice of such business or change, as appropriate, in a form acceptable to 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 keepingDepartment.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with each of the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed or mailed for filing, in a form approved by the Representatives with the Commission Representative, pursuant to Rule 424 under the applicable paragraph of Rule 424(b) within the time period prescribed Act and will provide evidence satisfactory notify you promptly of such filing or mailing. During the period for which a prospectus relating to the Representatives of such timely filing. The Securities is required to be delivered under the Act, the Company will promptly advise the Representatives Representative (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3ii) when any subsequent supplement to the Prospectus has been filed or mailed for filing, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Registration Statement or the Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding proceedings for that purpose purpose, and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will not file any amendment to the Registration Statement or supplement to the Prospectus (other than any prospectus supplement relating to the offering of securities registered under the Registration Statement other than the Securities and permitted by Section 4(g) hereof, or any document required to be filed under the Exchange Act which upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus) unless the Company has furnished to you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object after receiving a reasonable notice from the Representative thereof. The Company will furnish to you prior to the filing thereof a copy of any such prospectus supplement and any document which upon filing is deemed to be incorporated by reference in the Registration Statement or Prospectus. The Company will use its 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives Representative as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement or statements (which need not be audited) of the Company and its subsidiaries Company, for a twelve-month period beginning after the date of the Prospectus Supplement filed pursuant to Rule 424 under the Act, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon The Company has previously furnished to the Representative, upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, a signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement as originally filed and of each amendment thereto, including the statement on Form T-1 of the Trustee and all powers of attorney, consents and exhibits filed therewith (without other than exhibits theretoincorporated by reference), and will deliver to the Representative 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 (including Act, all amendments of and supplements to such documents, in circumstances where each case as soon as available and in such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto quantities as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrangefurnish such information, if necessary, for the qualification of execute such instruments and take such action as may be required to qualify the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory AuthoritySecurities; provided, Inc.however, in connection with its review of the offering; provided that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(f) So long as the Securities are outstanding, the Company will furnish (or cause to be furnished) to the Representative, upon request, copies of (i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent all reports to stockholders of the Representatives, Company and (ii) each Underwriter, severally all reports and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be financial statements filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingnational securities exchange.
(g) During the period beginning from the date of this Agreement and continuing to and including the earlier of (i) The the termination of trading restrictions on the Securities, as notified to the Company will notby the Representative, or (ii) the thirtieth day after the Closing Date for the Securities, not to offer, sell, or otherwise dispose of any debt securities of the Company (except under prior contractual commitments which have been disclosed to you), without the prior written consent of the RepresentativesRepresentative, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably consent shall not be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Dateunreasonably withheld.
(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.
Appears in 1 contract
Samples: Senior Debt Securities Underwriting Agreement (Niagara Mohawk Power Corp /Ny/)
Agreements. The (A) Each of the Issuer and the Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, The Issuer and the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Issuer and the Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3ii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to that would prevent its use or the institution or threatening of any proceeding for that purpose and (5iv) of the receipt by the Company or the Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Issuer and the Company will each use its 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. Neither the Issuer nor the Company will file any amendment of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or supplement to the Final Prospectus unless you have been furnished a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object.
(b) The 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 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 shall be necessary to amend or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Issuer and the Company will give the Representatives immediate notice of the occurrence of such event and promptly will prepare and file with the Commission, subject to the last sentence of Section 4(A)(a), an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Issuer will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an “earning statement” (which need not be audited) of the Company and its subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(d) The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Final Prospectus and the Final Term Sheet Prospectus and each Issuer Free Writing Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.
(e) The Issuer and the Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors.
(f) Until the earlier of the day on which the distribution of the Securities is completed or the business day following the Closing Date, neither the Issuer nor the Company will, without the consent of the Representatives, offer or sell, or announce the offering of, any debt securities covered by the Registration Statement or any other registration statement filed under the Act.
(g) The Issuer will prepare a final term sheet, containing solely a description of the Securities, in a form approved by you and will file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(ch) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company Issuer will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(di) 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 Supplement 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 Each of the circumstances under which they were made not misleading, or if it shall be necessary to amend Issuer and the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, obtains the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 4(A)(g) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Each of the Issuer and 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.
(iB) The Company will not, without several Underwriters agree with the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by Issuer and the Company or any affiliate that:
(a) The Representatives will pay the expenses of printing and distributing all documents relating to 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 in respect 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 commencing on the date hereof and ending on the Closing Dateoffering.
(jb) The Company Representatives 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 pay the Exchange Act or otherwise, stabilization or manipulation reasonable fees and disbursements of outside counsel for the price of any security of Issuer and the Company and the Underwriters relating to facilitate the sale or resale offering.
(c) The Representatives will pay any fees of Xxxxx’x Investors Service, Inc. and Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc. relating to the rating of the Securities.
(d) The Representatives will pay the fees and disbursements of PricewaterhouseCoopers LLP relating to the preparation of the letter required by Section 5(e) of this Agreement.
(e) The Representatives will pay the reasonable fees and expenses of The Bank of New York, as Trustee.
(f) The Representatives will pay any and all fees associated with listing the Securities on any United States or foreign securities exchange.
(g) The Representatives will pay any and all travel expenses incurred by the Issuer and the Company in connection with the offering of the Securities.
(h) The Representatives will pay any and all other miscellaneous expenses and/or taxes associated with the offering.
(i) Each Underwriter agrees to furnish the Issuer and the Company with a copy of each proposed Free Writing Prospectus to be prepared by or on behalf of such Underwriter before its first use and not to use any Free Writing Prospectus, to which the Issuer or the Company reasonably objects, provided, however, that without consent of the Issuer and the Company, each Underwriter may use the final term sheet prepared and filed pursuant to Section 4(A)(g) hereto and one or more preliminary term sheets relating to the Securities containing customary information.
Appears in 1 contract
Samples: Underwriting Agreement (International Business Machines Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III heretohereto and in respect of the electronic road show dated March 1, 2021. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect of, any debt preferred stock or any other securities issued of the Company, including any backup undertaking of such preferred stock or guaranteed by other securities, in each case that are substantially similar to the Preferred Stock or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company (other than the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters ---------- that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementFinal Prospectus) to the Base 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives Underwriters of such timely filing. The Company will promptly advise the Representatives Underwriters (1i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2i) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; compliance and (4ii) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Underwriters 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 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives Underwriters and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Underwriters may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriters may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Securities, and will arrange for the determination of the legality of the securities for purchase by institutional investors and will pay any the fee of the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc., if necessary, in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(if) The Company agrees that, unless it has obtained or obtains, as Until the case may bebusiness date set forth on Schedule I hereto, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the RepresentativesUnderwriters, offer, sell, sell or contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including or announce the filing (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 in respect offering of, any debt securities issued or guaranteed by the Company (other than the Securities).
(g) or publicly announce an intention to effect any such transaction for a period commencing on The Company confirms as of the date hereof that it is in compliance with all provisions of Section 1 of Laws of Florida, Chapter 92- 198, An Act Relating to Disclosure of Doing Business with Cuba, and ending on the Closing Date.
--------------------------------------------------------- Company further agrees that if it commences engaging in business with the government of Cuba or with any person or affiliate located in Cuba after the date the Registration Statement became effective with the Securities and Exchange Commission or with the Florida Department of Banking and Finance (j) The the "Department"), or if the information reported in the Final Prospectus, if any, concerning the Company's business with Cuba or with any person or affiliate located in Cuba changes in any material way, the Company will not takeprovide the Department notice of such business or change, directly or indirectlyas appropriate, any action designed in a form acceptable 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 SecuritiesDepartment.
Appears in 1 contract
Samples: Underwriting Agreement (Standard Pacific Corp /De/)
Agreements. The Company agrees with the several Underwriters that::
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare a final term sheet entitled “Summary of Terms” for each series of Securities, substantially in the form of Schedule II hereto (the “Final Term Sheet Sheets”) and will file the Final Term Sheet Sheets pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term SheetSheets; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Samples: Underwriting Agreement (SOUTHERN CALIFORNIA EDISON Co)
Agreements. The Each of the Issuer and the Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Issuer and the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementTime of Sale Information) to the Base Prospectus unless the Issuer and the Company has have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, The Issuer and the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Issuer and the Company will promptly advise the Representatives Representative (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Issuer or the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Issuer and the Company will use its their best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will To prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Annex B hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package Time of Sale Information would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances then prevailing, under which they were made not misleading, the Issuer and the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package Time of Sale Information may cease until it is amended or supplemented; (ii) amend or supplement the Time of Sale Information 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 Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Issuer and the Company promptly will (1i) notify the Representatives Representative of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 53, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Issuer and the Company will make generally available to its security holders and to the Representatives 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.
(f) Upon request, The Issuer and the Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplementthe Time of Sale Information, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Representative may reasonably request. The Issuer and the Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Issuer and the Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Issuer and the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ih) The Each of the Issuer and the Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Issuer and the Company that, unless it has or obtainsshall have obtained, as the case may be, the prior written consent of the Representatives, Issuer and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Issuer and 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 Sheetfinal term sheet prepared and filed pursuant to Section 3(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing ProspectusesProspectus included in Annex B hereto and, if anyapplicable, included in Schedule III heretoany electronic road show. Any such free writing prospectus consented to by the Representatives Representative or the Issuer and the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Each of the Issuer and 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 Issuer and the Guarantors will use their best efforts, in cooperation with the Underwriters, to arrange, if necessary, for the qualification of the Securities for sale by the Underwriters under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Issuer and the Guarantors be obligated to qualify to do business in any jurisdiction where they are not now so qualified or to take any action that would subject them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where they are not now so subject. The Issuer and the Company will promptly advise the Representative of the receipt by the Issuer or any of the Guarantors of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(1) If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Issuer and the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (a) of this Section 3, file with the Commission and furnish to the Underwriters and to such dealers as the Representative may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Issuer and the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (a) of this Section 3, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representative may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(k) The Company and the Issuer will make generally available to its security holders and the Representative as soon as practicable an earnings statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company and the Issuer occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(l) The Issuer will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m) The Issuer and the Guarantors will cooperate with the Representative and use their best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(n) Neither the Issuer nor any of the Guarantors will for a period of ten business days following the Closing Date, without the prior written consent of the RepresentativesRepresentative, offer, sell, sell or contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition of (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company Issuer or the Guarantors or any affiliate of the Company their respective affiliates or any person in privity with the Company Issuer or the Guarantors or any affiliate of the Company) their respective affiliates), directly or indirectly, including or announce 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 in respect offering of, any debt securities issued or guaranteed by the Company Issuer or the Guarantors (other than the Securities). Notwithstanding anything in this Section 3(n) to the contrary, the Company directly or publicly announce an intention indirectly through a subsidiary, may (i) make borrowings under the Bank Credit Facilities (as defined in the Indenture) pursuant to effect any the terms and conditions of such transaction for a period commencing on agreement, (ii) enter into purchase money mortgage transactions, (iii) obtain letters of credit and (iv) enter into such other commercial lending transactions consistent with the date hereof and ending on the Closing DateCompany’s business.
(jo) The Company Issuer and the Guarantors will not take, directly or indirectly, any action designed to or that would constitute which has constituted or that which might reasonably be expected to cause or result inresult, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company Issuer or the Guarantors to facilitate the sale or resale of the Securities.
(p) The Issuer and the Company agree to pay all expenses incident to the performance of their obligations under this Agreement, including (i) the costs of the preparation and printing of the Registration Statement, any Issuer Free Writing Prospectus, each Preliminary Prospectus, the Time of Sale Information and the Prospectus and each amendment or supplement thereto, (ii) the costs of printing and distributing to the Underwriters and any selected dealers the Registration Statement, any Issuer Free Writing Prospectus, each Preliminary Prospectus, the Time of Sale Information and the Prospectus, and all amendments or supplements thereto, as provided in this Agreement, (iii) the costs of typing, printing and reproducing this Agreement and the Indenture, (iv) the fees paid to rating agencies in connection with the rating of the Securities, (v) the fees and expenses of qualifying the Securities under the securities laws of the several jurisdictions as provided in Section 3(i) hereof and of preparing, printing, reproducing and distributing a Blue Sky Memorandum (including the reasonable fees and disbursements of counsel for the Underwriters in connection therewith), (vi) the fees and disbursements of the counsel and accountants for the Issuer and the Guarantors, (vii) the fees of the Trustee and (viii) the cost of printing and engraving certificates representing the Securities.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters Manager that:
(a) Prior During any period when the delivery of a prospectus relating to the termination of Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172 or any similar rule) to be delivered under the offering of the SecuritiesAct, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Interim Prospectus Supplement) to the Base Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you to the Manager a copy for your its review prior to filing and will not file any such proposed amendment or supplement to which you the Manager reasonably objectobjects. Subject to The Company has properly completed the foregoing sentenceProspectus, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Manager, and filed such Prospectus, as amended at the Execution Time, with the Commission pursuant to the applicable paragraph of Rule 424(b) by the Execution Time and will cause any supplement to the Prospectus to be properly completed, in a form approved by the Manager, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence satisfactory to the Representatives Manager of such timely filing. The Company will promptly advise the Representatives Manager (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2ii) 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 SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time on or after an Applicable Time but prior to the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there related Settlement Date or Time of Delivery, any event occurs an event or development as a result of which the Disclosure Package Prospectus would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (i) notify promptly the Representatives Manager so that any use of the Disclosure Package Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Prospectus 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.
(dc) If, at During any time period when the delivery of a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)172 or any similar rule) to be delivered under the Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Manager of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you the Manager in such quantities as you the Manager may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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.
(fe) Upon request, the The Company will furnish to the Representatives Manager and counsel for the UnderwritersManager, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter the Manager or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172172 or any similar rule), as many copies of each Preliminary the Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Manager may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such jurisdictions as the Representatives Manager may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringShares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Shares, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the RepresentativesManager, and (ii) each Underwriter, severally and not jointly, the Manager agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III I hereto. Any such free writing prospectus consented to by the Representatives Manager or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (xi) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (yii) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Samples: Equity Distribution Agreement
Agreements. The Each of the Company Parties agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Company nor the Guarantor will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus unless the Company has Parties have furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the The Company Parties will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company Parties of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Parties will use its their reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company Parties will prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule V hereto and file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives Underwriters 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) Upon request, the The Company Parties will furnish to the Representatives and counsel for the Underwriters, upon request and without charge, one signed copies copy of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company Parties will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the either Company Party be obligated to (i) qualify to do business as a foreign limited partnership in any jurisdiction where in which it is would not now otherwise be required to so qualified or to take any action that would subject it qualify, (ii) file a general consent to service of process in suits, other than those arising out of the offering any such jurisdiction or sale of the Securities (iii) subject itself to taxation in any jurisdiction where in which it is would not now so otherwise be subject.
(ih) The Company agrees Parties agree that, unless it has they have or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company Parties that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal 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 Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretoIV hereto and 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 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by Neither the Company or any affiliate of nor 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(j) The Company Guarantor 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 Parties to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of representatives of the Company in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its respective obligations hereunder.
Appears in 1 contract
Agreements. (A) The Company agrees with the several Underwriters that:
(a) Prior The Company will use its best efforts to cause the termination Registration Statement, and any amendment thereof, if not effective at the Execution Time, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the offering of the SecuritiesProspectus is otherwise required under Rule 424(b), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, Registration Statement shall have been filed (if required) with the Commission pursuant to Rule 424(b)become effective, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or supplement to the Prospectus unless the Company has furnished you a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery the Company will give the Representatives immediate notice of the Final Prospectus Supplement, the Company occurrence of such event and promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale legality of the Securities in any jurisdiction where it is not now so subjectfor purchase by institutional investors.
(if) The Company agrees that, unless it has obtained Until the earlier of the day on which the distribution of the Securities is completed or obtains, as the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or 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 announce 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 in respect offering of, any debt securities issued or guaranteed covered by the Company (Registration Statement or any other than registration statement filed under the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateAct.
(jB) The several Underwriters agree with the Company that:
(a) The several Underwriters will not takepay the expenses of printing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company, directly or indirectlyif any, and the Trustee relating to the offering.
(c) The several Underwriters will pay any action designed to or that would constitute or that might reasonably be expected to cause or result infees of Xxxxx'x Investors Service, under the Exchange Act or otherwiseInc. and Standard & Poor's Ratings Group, stabilization or manipulation a division of the price of any security of XxXxxx-Xxxx Companies, Inc. relating to the Company to facilitate the sale or resale rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of PricewaterhouseCoopers LLP relating to the preparation of the letter required by Section 5(e) of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Minnesota Mining & Manufacturing Co)
Agreements. The Company covenants and agrees with the several Underwriters each Underwriter that:
(a) Prior to During the termination period beginning at the Initial Sale Time and ending on the later of the offering Closing Date or such date, as in the opinion of counsel for the Representative, the Prospectus is no longer required by law to be delivered in connection with sales by any of the SecuritiesUnderwriters or dealer (except for delivery requirements imposed because any Underwriter or dealer is an affiliate of the Company), including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus or the Disclosure Package (including the Prospectus) unless the Company has furnished you the Representative a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you the Representative reasonably object; provided, however, that the foregoing shall not apply to filings required to be made with the Commission in order to comply with the Exchange Act so long as any such filing is provided to the Representative a reasonable amount of time in advance of filing. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424 via XXXXX. The Company will advise the Representative promptly (i) when any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement or the Disclosure Package relating to the Notes shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or the Disclosure Package, the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any notice objecting to its use Preliminary Prospectus of the Prospectus or the institution or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act, and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the suspension of Prospectus or suspending any such qualification of the Notes and, if any such order is issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Samples: Underwriting Agreement (Hallmark Financial Services Inc)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) 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 158158 under the Securities Act.
(fe) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ig) The Company will not, for a period of sixty (60) days from the date of this Agreement, without the prior written consent of the RepresentativesCitigroup Global Markets Inc. and Leerink Partners LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable for, shares Common Stock; or publicly announce an intention to effect any such transaction transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the Company may, without obtaining such prior written consent, issue and sell Common Stock pursuant to or in connection with (i) any equity incentive plan, inducement plan, employee stock purchase plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) the conversion of securities or the exercise of options or warrants outstanding at the Execution Time, (iii) the consummation by the Company of a strategic partnership, joint venture, collaboration or acquisition or license of any business products or technology, provided that (A) the aggregate number of shares of Common Stock that may be issued pursuant to this clause (iii) shall not exceed ten percent (10%) of the number of shares of Common Stock outstanding immediately after the closing of the sale of the Securities to the Underwriters pursuant to this Agreement and (B) the recipient of such shares shall agree to execute a letter substantially in the form of Exhibit A hereto for a period commencing on the remainder of the term set forth in such letter, and (iv) following the date hereof and ending on that is thirty (30) days following the Closing Date., issuances pursuant to that certain Equity Distribution Agreement, dated November 21, 2018, between the Company and Citigroup Global Markets Inc., provided that the aggregate number of shares of Common Stock that may be issued pursuant to this clause (iv) shall not exceed 1,000,000 shares and the price at which such shares of Common Stock are sold pursuant to this clause (iv) shall not be less than the “Price per Share to Public” set forth on Schedule I.
(jh) 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.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Global Select Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification, provided such fees and expenses of counsel do not exceed $15,000 in the aggregate); (vii) any filings required to be made with FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings, provided such fees and fees and expenses of counsel do no exceed $15,000 in the aggregate); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder; provided that, the Underwriters shall pay their own costs and expenses, including the fees and expenses of their counsel, any transfer taxes on the resale of any Securities by them and the expenses of advertising any offering of the Securities made by the Underwriters.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the Securities Act (“Rule 433”); provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
Appears in 1 contract
Samples: Underwriting Agreement (Tocagen Inc)
Agreements. The Company agrees with the several Underwriters each Agent that:
(a) Prior to the termination of the offering of the SecuritiesNotes pursuant to this Agreement or any Terms Agreement, the Company will not file any Prospectus Supplement relating to the Notes or any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has previously furnished you a copy to the Agents copies thereof for your their review prior to filing and will not file any such proposed supplement or amendment or supplement to which you the Agents reasonably object; PROVIDED, HOWEVER, that (i) 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), 14 or 15(d) of the Exchange Act, copies of which filings the Company will cause to be delivered to the Agents promptly after being transmitted for filing with the Commission and (ii) any Prospectus Supplement that merely sets forth the terms or a description of particular Notes shall only be reviewed and approved by the Agent or Agents offering such Notes. Subject to the foregoing sentence, the Company will promptly cause the Final each Prospectus Supplement, properly completed, and any amendment or supplement thereto Supplement to be filed in a form approved by the Representatives with or transmitted for filing to the Commission pursuant to the applicable paragraph of in accordance with Rule 424(b) within under the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filingSecurities Act. The Company will promptly advise the Representatives Agents (1i) when of the Final Prospectus Supplement, and filing of any amendment or supplement thereto, to the Basic Prospectus (except that notice of the filing of an amendment or supplement to the Basic Prospectus that merely sets forth the terms or a description of particular Notes shall have been filed (if required) with only be given to the Commission pursuant to Rule 424(bAgent or Agents offering such Notes), (2ii) when, prior to termination of the offering filing and effectiveness of the Securities, any amendment to the Registration Statement shall have been filed or become effectiveStatement, (3iii) of any request by the Commission or its staff for any amendment of to the Registration Statement, Statement or for any amendment or supplement to the Final Basic Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the notice of suspension of any such 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, no Agent shall be obligated to solicit offers to purchase Notes so long as it is not reasonably satisfied with 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 practicabledocument.
(b) The Company will prepare If, at any time when a prospectus relating to the Final Term Sheet and will file Notes is required to be delivered under the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development condition exists as a result of which the Disclosure Package Prospectus, as then amended or supplemented, would include an untrue statement of a material fact fact, or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances when the Prospectus, as then prevailingamended or supplemented, is delivered to a purchaser, not misleading, or if, in the opinion of the Agents or in the opinion of the Company, it is necessary at any time to amend or supplement the Prospectus, as then amended or supplemented, to comply with applicable law, the Company will immediately notify promptly the Representatives Agents by telephone (with confirmation in writing) to suspend solicitation of offers to purchase Notes and, if so that any use of notified by the Disclosure Package may Company, the Agents shall forthwith suspend such solicitation and cease until it is using the Prospectus, as then amended or supplemented.
(d) If, at any time when a prospectus relating to . If 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 Supplement 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 Company shall be necessary decide to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Registration Statement or Prospectus, as then amended or supplemented, it shall so advise the Agents promptly by telephone (with confirmation in writing) and, at its expense, shall prepare and cause to comply be filed promptly with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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, Commission an amendment or supplement to the Registration Statement or new registration statement which Prospectus, as then amended or supplemented, satisfactory in all respects to the Agents, that will correct such statement or omission or effect such compliance; compliance and will supply such amended or supplemented Prospectus to the Agents in such quantities as they may reasonably request. If any documents, certificates, opinions and letters furnished to the Agents pursuant to paragraph (3f) use 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 the Agents, upon the filing with the Commission of such amendment or supplement to the Prospectus or upon the effectiveness of an amendment to the Registration Statement, the Agents will resume the solicitation of offers to purchase Notes hereunder. Notwithstanding any other provision of this Section 3(b), until the distribution of any Notes an Agent may own as principal has been completed, if any event described above in this paragraph (b) occurs, the Company will, at its best efforts own expense, forthwith prepare and cause to have any be filed promptly with the Commission an amendment or supplement to the Registration Statement or new registration statement declared effective Prospectus, as soon as practicable then amended or supplemented, satisfactory in order all respects to avoid any disruption in use of the Final Prospectus Supplement; and (4) such Agent, will supply any such amended or supplemented Final Prospectus Supplement to you such Agent in such quantities as you it may reasonably requestrequest and shall furnish to such Agent pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters as it may request in connection with the preparation and filing of such amendment or supplement.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives an earnings statement or Agents as soon as practicable earning statements of the Company and its subsidiaries which will that satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder covering twelve month periods 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 158158 under the Securities Act) of the Registration Statement with respect to each sale of Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal year, such earning statement shall be made available not later than 90 days after the close of the period covered thereby and in all other cases shall be made available not later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, 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 such Agent may reasonably request.
(e) The Company shall furnish to the Agents such relevant documents and 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, the Indenture, the Notes, this Agreement, the Administrative Procedures, any Terms Agreement and the performance by the Company of its obligations hereunder or thereunder as the Agents may from time to time reasonably request.
(f) Upon requestThe Company shall notify the Agents 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 Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies direction of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy possible change, in the rating accorded any of the Registration Statement Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g) (without exhibits thereto2) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringSecurities Act.
(g) The Company will arrangewill, if necessarywhether or not any sale of Notes is consummated, pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including: (i) the preparation and filing of the Registration Statement and the Prospectus and all amendments and supplements thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the fees and disbursements of the Company's counsel and accountants and of the Trustee and its counsel, (iv) the printing and delivery to the Agents in quantities as hereinabove stated of copies of the Registration Statement and all amendments thereto and of the Prospectus and any amendments or supplements thereto, (v) any fees charged by rating agencies for the qualification rating of the Securities for sale under Notes, (vi) any expenses incurred by the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., Company in connection with its review a "road show" presentation to potential investors and (vii) the fees and disbursements of counsel for the offering; provided that Agents incurred in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of connection with the offering or and sale of the Securities in Notes, including any jurisdiction where it is not now so subjectopinions to be rendered by such counsel hereunder.
(ih) The Company agrees that, unless it has obtained or obtains, as During the case may beperiod beginning the date of any Terms Agreement and continuing to and including the Settlement Date with respect to such Terms Agreement, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the such Agent's prior written consent of the Representativesconsent, offer, sell, contract to sell, pledge, sell or otherwise dispose of, (or enter into of any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate debt securities of the Company or any person in privity with warrants to purchase debt securities of the Company or any affiliate of substantially similar to such Notes (other than (i) the CompanyNotes that are to be sold pursuant to such Terms Agreement, (ii) 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 in respect of, any debt securities issued or guaranteed Notes previously agreed to be sold by the Company and (other than iii) commercial paper issued in the Securities) or publicly announce an intention to effect any ordinary course of business), except as may otherwise be provided in such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement.
(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.
Appears in 1 contract
Agreements. The Company agrees Each of the Issuer and the Guarantors jointly and severally agree with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Issuer will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Issuer will promptly advise the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Issuer will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will Issuer shall prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in a form approved by you and shall file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(ciii) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made at such time, not misleading, the Company Issuer 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.
(div) If, at any time when a prospectus the Final 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly Issuer will (1) promptly notify the Representatives of any such event; (2) as soon as practicable, prepare and file with the Commission, subject to the second sentence of paragraph (ai) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 SupplementProspectus; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. (A) The Company agrees with the several Underwriters that:
(a) Prior The Company will use its best efforts to cause the termination Registration Statement, and any amendment thereof, if not effective at the Execution Time, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the offering of the SecuritiesProspectus is otherwise required under Rule 424(b), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, Registration Statement shall have been filed (if required) with the Commission pursuant to Rule 424(b)become effective, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or supplement to the Prospectus unless the Company has furnished you a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery the Company will give the Representatives immediate notice of the Final Prospectus Supplement, the Company occurrence of such event and promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale legality of the Securities in any jurisdiction where it is not now so subjectfor purchase by institutional investors.
(if) The Company agrees that, unless it has obtained Until the earlier of the day on which the distribution of the Securities is completed or obtains, as the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or 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 announce 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 in respect offering of, any debt securities issued or guaranteed covered by the Company (Registration Statement or any other than registration statement filed under the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateAct.
(jB) The several Underwriters agree with the Company that:
(a) The several Underwriters will not takepay the expenses of printing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company and the Trustee relating to the offering.
(c) The several Underwriters will pay any fees of Xxxxx'x Investors Service, directly or indirectlyInc. and Standard & Poor's Ratings Group, 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 a division of the price of any security of XxXxxx-Xxxx Companies, Inc. relating to the Company to facilitate the sale or resale rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of PricewaterhouseCoopers LLP relating to the preparation of the letter required by Section 5(e) of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (International Business Machines Corp)
Agreements. The Company agrees covenants with the several Underwriters thateach Underwriter as follows:
(a) Prior Immediately following the execution of this Agreement, the Company will prepare a Prospectus Supplement that complies with the Securities Act and the Securities Act Regulations and which sets forth the face amount of the Offered Certificates and their terms not otherwise specified in the basic prospectus relating to all offerings of pass through certificates under the termination Registration Statement, the name of each Underwriter participating in the offering and the face amount of the Offered Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance, and such other information as you and the Company deem appropriate in connection with the offering of the SecuritiesOffered Certificates. The Company will promptly transmit copies of the Prospectus Supplement and the Prospectus to the Commission for filing pursuant to Rule 424 under the Securities Act and will furnish to the Underwriters as many copies of the Prospectus Supplement and the Prospectus as you shall reasonably request.
(b) During the period when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act, the Company will not file promptly advise you of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) any request by the Commission for any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional informationinformation relating thereto or to any document incorporated by reference therein, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose purpose, and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Offered Certificates for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rulethereof.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Offered Certificates is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, any event occurs as a result of which the Final Prospectus Supplement as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Securities Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementRegulations, 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 (ad) of this Section 53, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment or supplement which will effect such compliance; . Neither your consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 4.
(3d) use At any time when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act or the Securities Act Regulations, the Company will give you notice of its best efforts intention to have file any amendment to the Registration Statement or new registration statement declared effective as soon as practicable any amendment or supplement to the Prospectus, whether pursuant to the Exchange Act, the Securities Act or otherwise, will furnish you with copies of any such amendment or supplement or other documents proposed to be filed within a reasonable time in order advance of filing, and will not file any such amendment or supplement or other documents in a form to avoid any disruption in use of the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to which you in such quantities as you may shall reasonably requestobject.
(e) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives an earnings statement has furnished or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representatives you and counsel for the Underwritersyour counsel, without charge, signed conformed copies of the Registration Statement as originally filed and of all amendments thereto, whether filed before or after such Registration Statement originally became effective (including exhibits thereto) thereto and to each other Underwriter a copy of the Registration Statement (without exhibits theretodocuments incorporated therein by reference) and, so long as delivery of a prospectus by an Underwriter underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Securities Act, as many copies of each Preliminary Prospectus Supplementpreliminary prospectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for take such actions as you may request to qualify the qualification of the Securities Offered Certificates for sale under the laws of such jurisdictions as the Representatives you may designate, reasonably request and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authoritysuch Offered Certificates. The Company, Inc.however, in connection with its review of the offering; provided that in no event shall the Company not be obligated to qualify to do business in as a foreign corporation or file any jurisdiction where it is not now so qualified or to take any action that would subject it general consent to service of process under the laws of any such jurisdiction or subject itself to taxation as doing business in suitsany such jurisdiction.
(g) The Company, other than those arising out during the period when a prospectus relating to the Offered Certificates is required to be delivered under the Securities Act and the Securities Act Regulations, will file promptly all documents required to be filed with the Commission pursuant to Section 13 or 14 of the offering or sale Exchange Act.
(h) The Company will make generally available to its security holders, in each case as soon as practicable, but not later than 45 days after the close of the period covered thereby (90 days in case the period covered corresponds to a fiscal year of the Company), earnings statements of the Company, which will comply as to form with the provisions of Rule 158 under the Securities in any jurisdiction where it is not now so subjectAct.
(i) The Company agrees that, unless it has obtained or obtains, as Between the case may bedate of this Agreement and the Closing Time, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the your prior written consent of the Representativesconsent, offer, sell, contract to sell, pledge, or otherwise dispose of, (sell 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 agreement to cash settlement or otherwise) by the Company or sell 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 in respect of, any public debt securities issued or guaranteed by registered under the Company Securities Act (other than the SecuritiesOffered Certificates) or publicly announce an intention to effect any such debt securities which may be sold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A under the Securities Act and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for a period commencing on similar debt securities registered under the date hereof and ending on the Closing DateSecurities Act.
(j) The Company (i) will not takemake an application on its behalf and on behalf of the Trusts for the Offered Certificates to be listed on the Luxembourg Stock Exchange (the "LSE") within a reasonable time after the date of the Preliminary Prospectus and (ii) will (x) deliver to the LSE copies of the Prospectus (or another appropriate offering document with respect to the Offered Certificates) and such other documents, directly or indirectly, any action designed to or that would constitute or that might information and undertakings as may reasonably be expected required or advisable for the purpose of obtaining such listing, which the Company shall use commercially reasonable good-faith efforts to cause or result inobtain within a reasonable period of time after the Closing Time; (y) if the Offered Certificates are listed on the LSE, under use commercially reasonable good-faith efforts to maintain such listing on the Exchange Act or otherwise, stabilization or manipulation LSE for as long as any of the price of any security of the Company to facilitate the sale Offered Certificates are outstanding; and (z) pay all reasonable fees and supply all further documents, information and undertakings as may reasonably be required or resale of the Securitiesadvisable for such purposes.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus Supplement Prospectus, or any Preliminary Prospectus SupplementRule 462(b) to the Base Prospectus 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 which you reasonably object. Subject Prior to the foregoing sentencetermination of the offering of the Securities, the Company will not amend the Canadian Offering Memorandum unless the Company has furnished you a copy for your review. The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will will, upon written request, provide evidence satisfactory to the Representatives Representative of such timely filing. The Company will promptly advise the Representatives Representative (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, thereto shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the Final Term Sheet and will file filing of the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package or Canadian Offering Memorandum, as the case may be, would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, under which they were made not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify the Representatives Representative of any such event; (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4iii) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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; provided, however, that (i) such requirements to the Company’s security holders shall be deemed met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158 and (ii) such requirements to the Representative shall be deemed met by the Company if the related reports are available on the Commission’s Electronic Data Gathering Analysis and Retrieval System.
(fe) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, upon written request and without charge, one signed copies copy of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and Prospectus, each Issuer Free Writing Prospectus and the Canadian Offering Memorandum and any amendment or supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, reasonably designate and will use its reasonable best efforts to maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of RBC Capital Markets, LLC, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, 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) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission (except for a registration statement on Form S-8 relating to the Company’s equity incentive plans) 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 Common Shares or any securities convertible into, or exercisable or exchangeable for, Common Shares or any class of capital shares of the Company or any securities convertible into, or exercisable, or exchangeable for, any of the foregoing; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may (i) issue and sell Common Shares pursuant to this Agreement, (ii) issue and sell Common Shares pursuant to any employee share option plan, share ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (iii) issue Common Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, and (iv) offer, issue and sell Common Shares or any securities convertible into, or exercisable, or exchangeable for, Common Shares as consideration payable to a third party in connection with any acquisition or strategic investment (including any joint venture, strategic alliance or partnership) involving such third party as long as (x) the aggregate number of Common Shares issued or issuable does not exceed 20% of the number of Common Shares outstanding immediately after the issuance and sale of the Securities, and (y) each recipient of any such shares or other securities agrees to restrictions on the resale of securities that are consistent with the lock-up letters described in Section 6(m) hereof for the remainder of the 60-day restricted period.
(h) 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.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Prospectus, each Issuer Free Writing Prospectus and the Canadian Offering Memorandum, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) sales of the Securities in the Canadian Selling Jurisdictions, if any (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such sales); (viii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); provided, however, that the reasonable fees and expenses of counsel for the Underwriters relating to subclauses (vi), (vii) and (viii) of this Section 5(i) shall not exceed $10,000 in the aggregate; (ix) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; provided, however, that the Company shall be responsible for half of the cost and expenses of any aircraft chartered in connection with the “road show” for the Securities and the Underwriters shall be responsible for the balance; (x) 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 (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder. The Underwriters shall pay their own costs and expenses, including the costs and expenses of counsel, any stamp or transfer taxes in connection with the original issuance and sale of the Securities on the Securities that they may sell and the expenses of advertising any offering of the Securities made by the Underwriters.
(j) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the RepresentativesRepresentative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretoII hereto and any electronic road show. Any such free writing prospectus consented to by the Representatives 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.
(ik) The Company will not, without use the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) net proceeds received by the Company or any affiliate from the sale 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 Securities in the filing) of a registration statement with manner specified in 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 in respect 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 commencing on the date hereof Preliminary Prospectus and ending on the Closing Date.
(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, Prospectus under the Exchange Act or otherwise, stabilization or manipulation caption “Use of the price of any security of the Company to facilitate the sale or resale of the SecuritiesProceeds.”
Appears in 1 contract
Samples: Underwriting Agreement (Civeo Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) 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 which you reasonably objectobject promptly after receipt of such amendment or supplement. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and or pursuant to Section 8A of the Act, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purposepurpose and (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act. The Company will use its best reasonable efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company It will prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule III hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they are being made, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) use its best reasonable efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings 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.
(f) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company or the Underwriters with the Commission or retained by the Company or the Underwriters under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal 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 Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretohereto and 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 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 and, pursuant to reasonable procedures developed in good faith, record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, on 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 commencing on transaction, until the date hereof and ending on Business Day following the Closing Date.
(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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (vii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (viii) the fees and expenses of the Trustee and the fees and expenses of its counsel; (ix) any fees payable in connection with the rating of the Securities with the ratings agencies; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Hasbro Inc)
Agreements. The Company agrees with the several Underwriters Underwriters, the Forward Purchasers and the Forward Sellers that:
(a) Prior The Company, subject to Section 6(b), will comply with the termination requirements of Rule 430B and will notify the offering of the SecuritiesUnderwriters, the Company will not file Forward Purchasers and the Forward Sellers promptly, and confirm the notice in writing, of (i) when any post-effective amendment of to the Registration Statement or supplement (including a new registration statement relating to the Final Prospectus Supplement Securities shall become effective, or any Preliminary preliminary prospectus, the Prospectus Supplement) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file or any such proposed amendment or supplement to which you reasonably object. Subject to any preliminary prospectus or the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)Commission, (2ii) whenthe receipt of any comments from the Commission with respect to the Registration Statement, prior the documents incorporated or deemed to termination of be incorporated by reference therein or the offering of Prospectus, (iii) any request by the Securities, Commission for any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by a new registration statement relating to the Commission Securities or its staff for any amendment of or supplement to any preliminary prospectus or the Registration Statement, Prospectus or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of such new registration statement, or any notice objecting to its use, or of any order preventing, suspending or objecting to the use of any preliminary prospectus or the institution Prospectus, or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for offering or sale in any jurisdiction jurisdiction, or of the institution initiation or threatening of any proceedings for any of such purposes or pursuant to Section 8A of the Securities Act or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement or (v) the Company becoming the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will promptly effect the filings necessary pursuant to Rule 424(b) and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such purposeprospectus. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if any stop order is issued, to obtain the lifting thereof as soon as possible practicable. The Company shall pay the withdrawal required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of such stop order or relief from such occurrence or objection, the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if necessaryapplicable, by filing an updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) The Company will give the Underwriters, the Forward Purchasers and the Forward Sellers notice of its intention to file or prepare any amendment to the Registration Statement or a new registration statement and using its best efforts relating to have the Securities or any amendment, supplement or revision to either any preliminary prospectus (including the prospectus included in the Registration Statement at the time it originally became effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Underwriters with copies of any such amendment document a reasonable amount of time prior to such proposed filing or new registration statement declared effective use, as soon as practicable.
(b) The Company will prepare the Final Term Sheet case may be, and will not file or use any such document to which the Final Term Sheet pursuant to Rule 433(d) within Underwriters or counsel for the time required by such RuleUnderwriters shall reasonably object.
(c) If there occurs an The Company has furnished or will deliver to the Underwriters, the Forward Purchasers and the Forward Sellers and their counsel, without charge, signed copies of the Registration Statement as originally filed and any new registration statement relating to the Securities and, in each case, any amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein, to the extent not otherwise publicly available on XXXXX) and signed copies of all consents and certificates of experts, and will also deliver to the Underwriters, the Forward Purchasers and the Forward Sellers without charge, a conformed copy thereof (without exhibits). Copies of the Registration Statement and any new registration statement relating to the Securities and, in each case, any amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, Forward Purchaser and Forward Seller, without charge, as many copies of each preliminary prospectus and any amendment or supplement thereto as such party may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish or make available to each Underwriter, Forward Purchaser and Forward Seller without charge, during the period when a prospectus is required under the 1933 Act or 1934 Act to be delivered (or but for the exemption afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”) would be required to be delivered) to investors in connection with sales of the Securities, such number of copies of the Prospectus and any amendment or supplement thereto as such party may reasonably request. Each preliminary prospectus and the Prospectus and, in each case, any amendment or supplement thereto furnished or made available to the Underwriters, the Forward Purchasers and the Forward Sellers will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the Prospectus and the Disclosure Package. If, at any time when a prospectus is required under the 1933 Act or the 1934 Act to be delivered (or but for the exemption afforded by Rule 172 would be required to be delivered) to investors in connection with sales of the Securities, any event shall occur or development condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and Forward Sellers or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Prospectus or the Disclosure Package would Package, as the case may be, in order that the Prospectus or the Disclosure Package, as the case may be, will not 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, or if it shall be necessary necessary, in the opinion of such counsel, at any such time to amend the Registration Statement, amend or supplement the Prospectus or the Disclosure Package or file a new registration statement or supplement relating to the Final Prospectus Supplement Securities in order to comply with law, including the requirements of the 1933 Act or the Exchange 1933 Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementRegulations, the Company will promptly will (1) notify the Representatives Underwriters, the Forward Purchasers and the Forward Sellers of any such event; (2) event or condition and prepare and file with the Commission, subject to the second sentence of paragraph Commission (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) and use its best efforts to have any amendment to the Registration Statement or any new registration statement containing the Prospectus to be declared effective immediately (if it is not an automatic shelf registration statement)), subject to Section 6(b) and 6(f) hereof, such new registration statement or amendment or supplement, at its own expense, as soon may be necessary to correct such statement or omission or to comply with law. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as practicable a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in order the Registration Statement (or any other registration statement relating to avoid the Securities), the Prospectus or any disruption in use of preliminary prospectus, including the Final Prospectus Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicabledocuments incorporated by reference therein, the Company will promptly notify the Underwriters, the Forward Purchasers and the Forward Sellers and will promptly amend or supplement such Issuer Free Writing Prospectus, at its own expense, to eliminate or correct such conflict.
(f) The Company represents that neither it nor anyone acting on its behalf has made, and agrees that, unless it obtains the prior written consent of the Underwriters, the Forward Purchasers and the Forward Sellers, neither it nor anyone acting on its behalf will 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; provided that the prior written consent of the Underwriters, the Forward Purchasers and Forward Sellers shall be deemed to have been given in respect of each free writing prospectus (as defined in Rule 405), if any, that is attached hereto as (or identified on) Schedule C. Any such free writing prospectus that is consented to, or is deemed to have been consented to, by the Underwriters and Forward Sellers is referred to herein 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) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the 1933 Act Regulations applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Underwriters agree that, unless they obtain the prior written consent of the Company, the Underwriters will not make any offer relating to the Securities that constitutes or would constitute a free writing prospectus required to be filed with the Commission under Rule 433. Notwithstanding the foregoing, the Company consents to the use by any Underwriter or Forward Seller of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 or (iii) information that describes the final terms of the Securities or their offering and other customary information relating thereto.
(g) If immediately prior to the third anniversary (the “Renewal Deadline”) of April 27, 2017, any of the Company Top-Up Securities remain unsold by the Underwriters, or any Borrowed Securities remain unsold by the Forward Sellers, the Company will, prior to the Renewal Deadline, file, if they have not already done so, a new shelf registration statement relating to the Securities in a form satisfactory to the Underwriters, the Forward Purchasers and the Forward Sellers and will use its best efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating thereto. References herein to the “Registration Statement” shall include such new shelf registration statement.
(h) The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders and to the Representatives securityholders as soon as practicable an earnings statement or statements of for the Company purposes of, and its subsidiaries which will satisfy to provide to the provisions Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the Act and Rule 1581933 Act.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gi) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriters, the Forward Purchasers and the Forward Sellers may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc.Authority (“FINRA”), in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ij) The Company will not, without use any net proceeds received by it from the prior written consent sale of the Representatives, offer, sell, contract Securities and pursuant to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result the Forward Sale Agreements in the disposition manner specified in the Registration Statement and the Prospectus under “Use of Proceeds.”
(whether by actual disposition k) The Company will use its best efforts to effect and maintain the listing of the Securities and the Confirmation Securities on the NYSE. In addition, on or effective economic disposition due to cash settlement or otherwise) before completion of this offering, the Company shall make all filings required under applicable securities laws and 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 in respect 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 commencing on the date hereof and ending on the Closing DateNYSE.
(jl) 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 1934 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, during the period when a prospectus is required under the 1933 Act or the 1934 Act to be delivered (or but for the exemption afforded by Rule 172 would be required to be delivered) to investors in connection with sales of the Securities, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(n) The Company will comply in all material respects with all applicable securities and other laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and 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 Xxxxxxxx-Xxxxx Act.
Appears in 1 contract
Samples: Underwriting Agreement (UDR, Inc.)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Representative with the Commission SEC pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company will promptly advise the Representatives Representative (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission SEC pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the SEC, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission SEC or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (i) notify promptly the Representatives Representative so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Representative of any such event; , (2ii) prepare and file with the CommissionSEC, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) As soon as practicable, the Company will make generally available (which may be satisfied by filing with the SEC on its Electronic Data Gathering Analysis and Retrieval System) to its security holders securityholders and to the Representatives 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 158158 under the Securities Act.
(fe) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement with conformed signatures (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will use its reasonable best efforts to arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative reasonably may designate, designate and will use its reasonable best efforts to maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ig) The Company will not, without the prior written consent of the RepresentativesRepresentative, 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 SEC in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable for, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for a period commencing transaction, until the Business Day set forth on Schedule I hereto (the “Lock-Up Period”), provided, however, that the Company may (i) issue and sell Common Stock (or any securities convertible into or exercisable, or exchangeable for, shares of Common Stock) pursuant to any employee stock option plan, incentive 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 (iii) file one or more registration statements on Form S-8 and (iv) offer, issue and sell shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, Common Stock, in connection with any acquisition or strategic investment (including any joint venture, strategic alliance or partnership) as long as (x) the aggregate number of shares of Common Stock issued or issuable does not exceed 10% of the number of shares of Common Stock outstanding immediately after the issuance and sale of the Securities and (y) each recipient of any such Common Stock issued or issuable agrees to the restrictions on the date resale of securities that are consistent with the lock-up letters described in Section 6(l) hereof and ending on for the Closing Dateremainder of the Lock-Up Period.
(jh) 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.
(i) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the SEC of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Global Select Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the FINRA (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings, with such fees and expenses of counsel not to exceed $10,000); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(j) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representative, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under the Securities Act (“Rule 433”); provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show. Any such free writing prospectus consented to by the Representative or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rule 164 under the Securities Act (“Rule 164”) and Rule 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
Appears in 1 contract
Samples: Underwriting Agreement (Calithera Biosciences, Inc.)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable..
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect of, any debt preferred stock or any other securities issued of the Company, including any backup undertaking of such preferred stock or guaranteed by other securities, in each case that are substantially similar to the Preferred Stock or any securities convertible into or exchangeable for the preferred stock or such substantially similar securities of the Company (other than the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes (including by way of resale by a Purchaser of Notes), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base 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 (iii) a supplement relating to an offering of Securities other than the Notes) unless the Company has furnished each of you 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, and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives you of such timely filing. The Company will promptly advise the Representatives each of you (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the any offering of the SecuritiesNotes, any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Representatives Company, each of you shall forthwith suspend such event; solicitation and cease using the Prospectus as then supplemented), (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; compliance and (4iii) supply any amended or supplemented Final Prospectus Supplement to each of you in such quantities as you may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to each of you pursuant to paragraph (f) of this Section 4 in connection with the preparation or filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives each of you an earnings statement or statements of the Company company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158the applicable rules and regulations thereunder.
(fd) Upon request, the The Company will furnish to the Representatives each of you and counsel for the Underwritersyour counsel, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringoffering of the Notes.
(ge) The Company will arrange, if necessary, cooperate with you and your counsel to arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives either of you may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Notes, and will pay any fee xxxxxxxxx xxxh you and your counsel to arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review legality of the offeringNotes for purchase by institutional investors; provided provided, however, that in no event shall the Company will not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or in order to take any action that would subject it effect such qualification.
(f) The Company shall furnish to service each of process in suitsyou such information, other than those arising out documents, certificates of officers of the offering Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, and any amendments thereof or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company and you of its and your respective obligations hereunder and thereunder as either of you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(g) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, 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, including fees of counsel, incurred in compliance with Section 4(e), the fees and disbursements of the Trustee and the fees of any agency that rates the Notes, (ii) reimburse each of you as requested for all out-of-pocket expenses (including without limitation advertising expenses), if any, incurred by you in connection with this Agreement and (iii) pay the reasonable fees and expenses of your counsel incurred in connection with this Agreement.
(h) Each acceptance by the 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 time of delivery to the purchaser of the Notes relating to such acceptance, as though made at and as of such time (it being understood that for purposes of the foregoing affirmation and covenant such representations and warranties shall relate to the Registration Statement and Prospectus as amended or supplemented at each such time). Each such acceptance by the Company of an offer for the purchase of Notes shall be deemed to constitute an additional representation, warranty and agreement by the Company that, as of the settlement 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 settlement date and of any other Securities in to be issued and sold by the Company on or prior to such settlement date, the aggregate amount of Securities (including any jurisdiction where it is Notes) which have been issued and sold by the Company will not now so subjectexceed 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 Company agrees that, unless it has obtained Each time that the Registration Statement or obtains, as the case may beProspectus is amended or supplemented (other than by an amendment or supplement relating to any offering of Securities other than the Notes or providing solely for the specification of or a change in the maturity dates, the prior written consent interest rates, the issuance prices or other similar terms of the Representativesany Notes sold pursuant hereto), and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained will deliver or obtains, as the case may be, the prior written consent cause to be delivered promptly to each of you a certificate of the Company, it has not made signed by the Chairman of the Board or the President and will not make any offer relating the principal financial or accounting officer 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 the certificate referred to in Section 5(d) but modified to relate to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission or retained by and to the Company under Rule 433, other than a free writing prospectus containing Registration Statement and the information contained in Prospectus as amended and supplemented to the Final Term Sheet; provided that the prior written consent time of the parties hereto shall be deemed to have been given in respect effectiveness of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives amendment 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 filing 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Datesupplement.
(j) The Company will not takeEach time that the Registration Statement or the Prospectus is amended or supplemented (other than by an amendment or supplement (i) relating to any offering of Securities other than the Notes, directly or indirectly(ii) providing solely for the specification of or a change in the maturity dates, any action designed to the interest rates, the issuance prices 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 other similar terms of any security Notes sold pursuant hereto), the Company shall furnish or cause to be furnished promptly to each of you a written opinion of counsel of the Company satisfactory to facilitate each of you, dated the sale or resale date of the Securities.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 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, counsel last furnishing such an opinion to you may furnish each of you with a letter to the effect that you may rely on such last opinion to the same extent as though it were dated the date of such
Appears in 1 contract
Agreements. (A) The Company agrees with the several Underwriters that:
(a) Prior The Company will use its best efforts to cause the termination Registration Statement, and any amendment thereof, if not effective at the Execution Time, to become effective. If the Registration Statement has become or becomes effective pursuant to Rule 430A, or filing of the offering of the SecuritiesProspectus is otherwise required under Rule 424(b), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus Supplement, and any amendment or supplement thereto, Registration Statement shall have been filed (if required) with the Commission pursuant to Rule 424(b)become effective, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof. The Company will not file any amendment of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or supplement to the Prospectus unless the Company has furnished you a new registration statement copy for your review prior to filing and using its best efforts to have will not file any such proposed amendment or new registration statement declared effective as soon as practicablesupplement to which you reasonably object.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery the Company will give the Representatives immediate notice of the Final Prospectus Supplement, the Company occurrence of such event and promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earnings statement or statements (which need not be audited) of the Company and its subsidiaries subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale legality of the Securities in any jurisdiction where it is not now so subjectfor purchase by institutional investors.
(if) The Company agrees that, unless it has obtained Until the earlier of the day on which the distribution of the Securities is completed or obtains, as the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or 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 announce 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 in respect offering of, any debt securities issued or guaranteed covered by the Company (Registration Statement or any other than registration statement filed under the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateAct.
(jB) The several Underwriters agree with the Company that:
(a) The several Underwriters will not takepay the expenses of printing and distributing all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company and the Underwriters relating to the offering.
(c) The several Underwriters will pay any fees of Moody's Investors Service, directly or indirectlyInc. and Standard & Poor's Ratings Grxxx, 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 x division of the price of any security of McGraw-Hill Companies, Inc. relating to the Company to facilitate the sale or resale rating of the Securities.
(d) The several Underwriters will pay the fees and disbursements of PricewaterhouseCoopers LLC relating to the preparation of the letter required by Section 5(e) of this Agreement.
(e) The several Underwriters will pay the reasonable fees and expenses of JPMorgan Chase Bank as Trustee.
(f) The several Underwriters will pay any and all fees associated with listing the Securities on any United States or foreign securities exchange.
(g) The several Underwriters will pay any and all travel expenses incurred by the Company in connection with the offering of the Securities.
(h) The several Underwriters will pay any and all other miscellaneous expenses and/or taxes associated with the offering.
Appears in 1 contract
Samples: Underwriting Agreement (International Business Machines Corp)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(dc) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or amendment, new registration statement or supplement which will correct such statement or omission or effect such compliance; , (3iii) use its reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ed) 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.
(fe) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject.
(ig) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretoII hereto and 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 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.
(ih) The Company will not, without the prior written consent of the RepresentativesCitigroup Global Markets Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction transaction, for a period commencing on of 90 days after the date hereof of this Agreement; provided, however, that the Company may issue and ending on sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Closing DateCompany 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.
(ji) 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 agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the Nasdaq Global Market; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities on any “road show” undertaken in connection with the marketing of the Securities; provided, that the Company shall pay only fifty percent (50%) of the cost of aircraft chartered in connection with the road show; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Samples: Underwriting Agreement (Comtech Telecommunications Corp /De/)
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (1) when the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424 or Rule 434 via the Electronic Data Gathering, Analysis and Retrieval System. The Company will advise the Representatives promptly (i) when the Final Prospectus shall have been filed with the Commission pursuant to Rule 424 or Rule 434, (2ii) when, prior to termination of the offering of the Securities, when any amendment to the Registration Statement relating to the Securities shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any amendment of or supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered by an Underwriter or dealer under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which which, in the judgment of the Company or in the opinion of counsel for the Underwriters, the Final Prospectus Supplement 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 shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which that will correct such statement or omission or an amendment that will effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement or statements of the Company and its subsidiaries which will satisfy (in form complying with the provisions of Section 11(aRule 158 of the regulations under the Act) covering a 12-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Act and Rule 158Registration Statement.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and each amendment thereto that shall become effective on or prior to each other Underwriter a copy of the Registration Statement (without exhibits thereto) Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplement, and the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement amendments thereof and supplements thereto as the Representatives may reasonably request. The Except as otherwise provided herein, the Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrange, if necessary, arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate, will use all reasonable efforts to maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review legality of the offeringSecurities for purchase by institutional investors; provided provided, however, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to general or unlimited service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(if) The Company agrees that, unless it has obtained or obtains, as Until the case may bebusiness day following the Closing Date, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, offer or sell, contract to sell, pledge, or otherwise dispose announce the offering 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) securities covered by the Company Registration Statement or by any affiliate of other registration statement filed under the Act; provided, however, the Company may, at any time, offer or sell or announce the offering of any person in privity with the Company or any affiliate of the Companysecurities (A) directly or indirectly, including the filing (or participation in the filing) of covered by a registration statement with on Form S-8, (B) covered by a registration statement on Form S-3 and pursuant to which the Commission in respect ofCompany issues securities for its Dividend Reinvestment Plan, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within (C) reserved for such issuance, with such reservation referred to in the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing DateFinal Prospectus.
(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.
Appears in 1 contract
Samples: Underwriting Agreement (Old Kent Financial Corp /Mi/)
Agreements. The Company agrees with the several Underwriters Purchaser that:: -----------
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) 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 which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company will promptly advise furnish to the Representatives (1) when Purchaser and Cravath, Swaine & Xxxxx, without charge, as many copies of the Final Prospectus SupplementMemorandum and any supplements or amendments thereof or thereto as the Purchaser may reasonably request, and any amendment will pay the expenses of printing or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination other production of the offering of the Securities, any amendment all documents relating to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicableofferings.
(b) The Company will prepare not amend or supplement the Final Term Sheet and will file Memorandum without the Final Term Sheet pursuant to Rule 433(d) within prior consent of the time required by such RulePurchaser.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)sale of the Preferred Stock by the Purchaser, any event occurs as a result of which the Final Prospectus Supplement Memorandum, as then supplemented amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement Memorandum to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use thereunder or delivery of the Final Prospectus Supplementother applicable law, the Company promptly will (1) notify the Representatives Purchaser of such event; (2) prepare and file with the Commissionsame and, subject to paragraph (b) of this Section 5, will prepare and provide to the second sentence of Purchaser pursuant to paragraph (a) of this Section 5, 5 an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gd) The Company will arrange, if necessary, arrange for the qualification qualifica tion of the Securities Preferred Stock for sale under the laws of such U.S. jurisdictions as the Representatives Purchaser may designate, designate and will maintain such qualifications in effect so long as required for the distribution sale of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; Preferred Stock provided that in no event shall the Company will not be obligated to qualify to do business in any jurisdiction where it is not now so qualified as foreign corporations or to take any action that would subject it execute a general consent to service of process in suits, any jurisdiction or to take any other than those arising out action that would subject them to general service of the offering process or sale of the Securities taxation in any jurisdiction where in which they are not otherwise subject. The Company will promptly advise the Purchaser of the receipt by it is not now so subjectof any notification with respect to the suspension of the qualification of the Preferred Stock for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ie) The Company will not, without the prior written consent nor will it permit any of its Affiliates to, resell any shares of Preferred Stock which constitute "restricted securities" under Rule 144 that have been reacquired by any of them.
(f) None of the RepresentativesCompany, offerany of its Affiliates, 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) acting on their behalf will, directly or indirectly, including the filing (make offers or participation in the filing) sales of a registration statement with the Commission in respect ofany security, or establish solicit offers to buy any security, under circumstances that would require the registration of the Preferred Stock under the Securities Act.
(g) None of the Company, any of its Affiliates or increase a put equivalent position any person acting on their behalf will engage in any form of general solicitation or liquidate or decrease a call equivalent position general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Preferred Stock in the United States, except pursuant to a registered public offering, whether an exchange offer or shelf registration, as provided in the Registration Agreement.
(h) So long as any shares of Preferred Stock are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any period in which it is not subject to and in compliance with Section 16 13 or 15(d) of the Exchange Act in respect ofAct, provide to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any debt securities issued or guaranteed information required to be provided by Rule 144A(d)(4) under the Company (other than Securities Act. This covenant is intended to be for the Securities) or publicly announce an intention benefit of the holders, and the prospective purchasers designated by such holders, from time to effect any time of such transaction for a period commencing on the date hereof and ending on the Closing Daterestricted securities.
(i) None of the Company, any of its Affiliates, or any person acting on their behalf will engage in any directed selling efforts with respect to the Preferred Stock except pursuant to a registered public offering as provided in the Registration Agreement and each of them will comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph have the meanings given to them by Regulation S.
(j) The Company will cooperate with the Purchaser and use its reasonable best efforts to permit the Securities to be eligible for clearance and settlement through The Depository Trust Company.
(k) The Company hereby agrees to permit the Preferred Stock to be designated Portal eligible securities, to pay the requisite fees related thereto and the Company has been advised by the Portal Market that the Securities have or will be designated Portal eligible securities in accordance with the rules and regulations of the National Association of Securities Dealers, Inc.
(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, prohibited by Regulation M under the Exchange Act or otherwiseAct, stabilization or manipulation in connection with the offering of the price Preferred Stock.
(m) The Company will not, until 90 days following the Closing Date, without the prior written consent of Salomon Brothers Inc, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, or file a registration statement for, any security debt securities or capital stock which is preferred as to payment of dividends, or as to distribution upon liquidation, over any other class of capital stock issued or guaranteed by the Company ("preferred stock") (other than (i) the Preferred Stock and (ii) pursuant to a registered public offering as provided in the Registration Agreement).
(n) The Company will apply the net proceeds from the sale of the Company to facilitate Preferred Stock sold by them substantially in accordance with the sale or resale statements under the caption "Use of Proceeds" in the SecuritiesFinal Memorandum.
Appears in 1 contract
Samples: Purchase Agreement (Century Maintenance Supply Inc)
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus (except for a supplement relating to an offering of Securities other than the Notes) unless the Company has furnished you to Xxxxxx Xxxx & Priest LLP, counsel for the Agents, a copy for your their review prior to filing and will not file any such proposed amendment or supplement to which you such counsel reasonably objectobjects, in writing. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives each of you of such timely filing. The Company will promptly advise the Representatives each of you (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to the termination of the offering of the SecuritiesNotes, any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Representatives Company, each of you shall forthwith suspend such event; solicitation and cease using the Prospectus as then supplemented), (2ii) prepare and file with the Commission, subject to the second first sentence of paragraph (a) of this Section 54, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; compliance and (4iii) supply any amended or supplemented Final Prospectus Supplement to each of you in such quantities as you may reasonably request. If such amendment or supplement, and any documents and certificates furnished to each of you pursuant to paragraph (g) of this Section 4 in connection with the preparation or filing of such amendment or supplement are reasonably satisfactory in all respects to counsel for the Agents, each of you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of any amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(ec) As soon as practicable, the The Company will make generally available to its security holders as soon as practicable following each calendar quarter, commencing with the next quarter beginning after the date of this Agreement and to ending with the Representatives an earnings statement or statements fifth calendar quarter after the end of the Company and its subsidiaries calendar quarter in which will satisfy the last sale of Notes effected pursuant hereto occurs, an earning statement (in form complying with the provisions of Section 11(a) of the Act and Rule 158which need not be certified by independent public accountants unless required by the Act) covering a twelve-month period ending at the close of the next preceding calendar quarter, which earning statement shall be in the same detail as the statement of income incorporated by reference in the Registration Statement.
(fd) Upon request, the The Company will furnish to the Representatives each of you and counsel for the Underwritersyour counsel, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Company will arrangefile all reports, if necessaryand amendments thereto, required to be filed by the Company with the Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act subsequent to the effective date of the Registration Statement and, so long as delivery of a prospectus may be required by the Act, the Company will furnish to each of you and your counsel, without charge, as many copies of such reports and amendments (excluding exhibits) as you may reasonably request.
(f) The Company will arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives you may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Notes, and will pay any fee arrange for the determination of the Financial Industry Regulatory Authority, Inc., in connection with its review legality of the offeringNotes for purchase by institutional investors; provided provided, that in no event shall the Company shall not be obligated required to qualify to do business in any jurisdiction where it is not now so qualified as a foreign corporation or to take any action that would subject it file a general consent to service of process in suitsany jurisdiction.
(g) The Company shall furnish to each of you such information, other than those arising out documents, and certificates of officers of the offering Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, and any amendments thereof or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company and you of its and your respective obligations hereunder and thereunder as you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Securities Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel, incurred in compliance with Section 4(f) (such amount not to exceed $7,500), the fees and disbursements of the Trustee and the fees of any jurisdiction where it is not now so subjectagency that rates the Notes, (ii) reimburse you for all out-of-pocket expenses (including without limitation advertising expenses) reasonably incurred by you in connection with this Agreement and (iii) pay the reasonable fees and expenses of your counsel incurred in connection with this Agreement.
(i) The Each acceptance by the Company agrees thatof an offer to purchase Notes will be deemed to be a reconfirmation to you of the representations and warranties of the Company contained in this Agreement.
(j) 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 Securities other than the Notes or (ii) an amendment or supplement providing solely for the specification of or a change in the maturity dates, unless it has obtained the interest rates, the issuance prices or obtainsother similar terms of any Notes sold pursuant hereto or (iii) the filing of Forms 8-K solely for the purpose of filing exhibits pursuant to Item 601 of Regulation S-K), and on each Closing Date, the Company will deliver or cause to be delivered promptly to you a certificate of the Company, signed by the President or any Vice President and the principal financial or accounting officer of the Company, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, or such Closing Date, as the case may be, the prior written consent in form reasonably satisfactory to you, of the Representatives, and (iisame tenor as the certificate referred to in Section 5(e) each Underwriter, severally and not jointly, agrees with but modified to relate to the Company that, unless it has obtained date of filing of such amendment or obtainssupplement or such Closing Date, as the case may be, and to the prior written consent Registration Statement and the Prospectus as amended and supplemented to the time of the Companyeffectiveness of such amendment or the filing of such supplement or such Closing Date, it has not made and will not make any offer as the case may be.
(k) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by an amendment or supplement (i) relating to any offering of Securities other than the Securities Notes, (ii) providing solely for the specification of or a change in the maturity dates, the interest rates, the issuance prices or other similar terms of any Notes sold pursuant hereto, or (iii) setting forth or incorporating by reference financial statements or other information as of and for a fiscal quarter or year end or in a Form 8-K, unless, in the case of clause (iii) above, in the reasonable judgment of any of you, such financial statements or other information are of such a nature that would constitute an Issuer Free Writing Prospectus opinions of counsel should be furnished), and on each Closing Date, the Company shall furnish or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required cause to be filed by furnished promptly to each of you written opinions of counsel of the Company with satisfactory to you, dated 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; provided that the prior written consent date of the parties hereto shall be deemed to have been given in respect effectiveness of such amendment or the date of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any filing of such free writing prospectus consented to by the Representatives supplement or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treatsuch Closing Date, as the case may be, in forms satisfactory to each Permitted Free Writing Prospectus of you, of the same tenor as an Issuer Free Writing Prospectus the opinions referred to in Sections 5(b) and (y) it has complied and will comply5(c), but, in each case, modified to relate to the date of filing of such amendment or supplement or such Closing Date, as the case may be, and 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 such Closing Date, as the case may be, or, in lieu of such opinions, each counsel last furnishing any such opinion to you may furnish you with a letter to the requirements effect that you may rely on such counsel's last opinion to the same extent as though it were dated the date of Rules 164 such letter authorizing reliance (except that statements in such last opinion will be deemed to relate to the Registration Statement and 433 applicable the Prospectus as amended and supplemented to any Permitted Free Writing Prospectus, including in respect the time of timely filing with the Commission, legending and record keepingsuch Closing Date).
(il) The Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth or incorporate by reference financial information, the Company will shall cause its independent 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(f) 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 accountants may limit the scope of such letter, which shall be satisfactory in form to each of you, to the unaudited financial statements, and any other information of an accounting, financial or statistical nature included in such amendment or supplement, unless, in the reasonable judgment of any of you, such letter should cover other information or changes in specified financial statement line items.
(m) During the period, if any, specified in any Terms Agreement, the Company shall not, without the prior written consent of the RepresentativesPurchaser thereunder, offer, sell, contract to sell, pledge, issue or otherwise dispose of, (or enter into announce the proposed issuance of 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 indirectlyits debt securities, including Notes, with terms substantially similar to 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 in respect of, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention Notes being purchased pursuant to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless without the Company has furnished consent of the Agents (except (i) periodic or current reports filed under the Exchange Act or (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) without first affording you a copy for your the opportunity to review prior to filing the same and will not file any such proposed amendment or supplement to which you shall timely and reasonably object. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or 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 satisfactory to the Representatives you of such timely filing. The Company will promptly advise the Representatives each of you (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to the termination of the offering of the SecuritiesNotes, any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statement, or of any notice objecting to its use part thereof, or the institution or threatening of any proceeding for that purpose purpose, or if the Company has knowledge that any such action is contemplated by the Commission, and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or to supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, the Company promptly will (1i) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Representatives Company, each of you shall forthwith suspend such event; solicitation and cease using the Prospectus as then supplemented), (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; compliance and (4iii) supply any amended or supplemented Final Prospectus Supplement to each of you in such quantities as you may reasonably request. If such amendment or supplement, and any documents, certificates and opinions furnished to any of you pursuant to paragraph (g) of this Section 4 in connection with the preparation or filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to the Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder. Notwithstanding the foregoing, if, at the time of any notification to suspend solicitations, any Agent shall own any of the Notes with the intention of reselling them, or the Company has accepted an offer to purchase Notes but the related settlement has not occurred, the Company, subject to the provisions of subsection (a) of this Section, will promptly prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(ec) 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 will furnish to each of you copies of such documents. In addition, on or prior to the date on which the Company makes any announcement to the general public concerning earnings or concerning any other event which is required to be described, or which the Company proposes to describe, in a document filed pursuant to the Exchange Act, the Company will furnish to each of you the information contained or to be contained in such announcement. The Company also will furnish to each of you copies of all other press releases or announcements to the general public. The Company will immediately notify each of you of any downgrading in the rating of the Notes or any other debt securities of the Company, or any proposal to downgrade the rating of the Notes or any other debt securities of the Company, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), as soon as the Company learns of any such downgrading or proposal to downgrade.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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 158158 under the Act.
(fe) Upon request, the The Company will furnish to the Representatives each of you and counsel for the Underwritersyour counsel, without charge, signed copies of the Registration Statement (including exhibits thereto) all amendments and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives you may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will arrange, if necessary, arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Representatives any of you may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Notes, and will pay any fee arrange for the determination of the Financial Industry Regulatory Authoritylegality of the Notes for purchase by institutional investors.
(g) The Company shall furnish to each of you such information, Inc.documents, certificates of officers of the Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, and any amendments thereof or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company and you of its and your respective obligations hereunder and thereunder as any of you may from time to time and at any time prior to the termination of this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel, incurred in compliance with Section 4(f), the fees and disbursements of the Trustee and the fees of any agency that rates the Notes, (ii) reimburse each of you on a monthly basis for all out-of-pocket expenses (including without limitation advertising expenses), if any, incurred by you in connection with its review this Agreement and the transactions contemplated hereunder and (iii) pay the reasonable fees and expenses of your counsel incurred in connection with this Agreement and the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjecttransactions contemplated hereunder.
(i) The Each acceptance by the Company agrees 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 time of delivery to the purchaser of the Notes relating to such acceptance, as though made at and as of such time (it being understood that for purposes of the foregoing affirmation and covenant such representations and warranties shall relate to the Registration Statement and Prospectus as amended or supplemented at each such time). Each such acceptance by the Company of an offer for the purchase of Notes shall be deemed to constitute an additional representation, warranty and agreement by the Company that, unless as of the settlement date for the sale of such Notes, after giving effect to the issuance of such Notes and of any other Notes to be issued on or prior to such settlement date, the aggregate amount of Notes which have been issued and sold by the Company will not exceed the amount of Notes registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by filing with the Commission: (1) an amendment or supplement relating to any offering of Securities other than the Notes, (2) a supplement relating to any offering of Notes providing solely for the specification of or a change in the maturity dates, the interest rates, the issuance prices or other similar terms of any Notes, (3) an amendment or supplement setting forth financial statements of benefit plans of the Company, (4) a Current Report on Form 8-K (or any successor item thereto) or (5) any other amendment or supplement as to which each of you has given notice to us that you deem it has obtained immaterial), the Company will deliver or obtainscause to be delivered promptly to each of you a certificate of the Company, signed by any two of the Chairman of the Board, the President, the principal financial officer, the principal accounting officer or a senior vice president of the Company, dated the date of the effectiveness of such amendment or the date of the filing with the Commission of such supplement or document, as the case may be, the prior written consent in form reasonably satisfactory to you, of the Representatives, and (iisame tenor as the certificate referred to in Section 5(e) each Underwriter, severally and not jointly, agrees but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission and to the Registration Statement and the Prospectus existing at the time of the effectiveness of such amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the Prospectus is amended or supplemented (other than by filing with the Commission: (1) an amendment or supplement relating to any offering of Securities other than the Notes, (2) a supplement relating to any offering of Notes providing solely for the specification of or a change in the maturity dates, the interest rates, the issuance prices or other similar terms of any Notes, (3) a Current Report on Form 8-K (or any successor item thereto), (4) an amendment or supplement setting forth financial statements of benefit plans of the Company thator (5) any other amendment or supplement as to which each of you has given notice to us that you deem it immaterial), unless it has obtained the Company shall furnish or obtainscause to be furnished promptly to each of you written opinions of counsel to the Company satisfactory to each of you, dated the date of the effectiveness of such amendment or the date of the filing with the Commission of such supplement or document, as the case may be, the prior written consent in form satisfactory to each of you, of the Company, it has not made same tenor as the opinions referred to in Sections 5(b) and will not make any offer relating 5(c) but modified to relate to the Securities that would constitute an Issuer Free Writing Registration Statement and the Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by existing at 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; provided that the prior written consent time of the parties hereto shall effectiveness of such amendment or the filing of such supplement or, in lieu of such opinion, counsel last furnishing such an opinion to you may furnish each of you with a letter to the effect that you may rely on such 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 have been given in respect relate to the Registration Statement and the Prospectus existing at the time of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any effectiveness of such free writing prospectus consented to by the Representatives amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the Prospectus is amended or supplemented to set forth amended or supplemental financial information (other than by filing with the Commission: (1) an amendment or supplement relating to any offering of Securities other than the Notes, (2) a supplement relating to any offering of the Notes providing solely for the specification of or a change in the maturity dates, the interest rates, the issuance prices or other similar terms of any Notes, (3) a Current Report on Form 8-K (or any successor item thereto), (4) an amendment or supplement relating to financial statements of benefit plans of the Company is hereinafter referred or (5) any other amendment or supplement as to as which each of you has given notice to us that you deem it immaterial), the Company shall cause its independent public accountants promptly to furnish to each of you a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treatletter, dated within two business days of the date of the effectiveness of such amendment or the date of the filing of such supplement or document, as the case may be, in form satisfactory to each Permitted Free Writing Prospectus of you, of the same tenor as an Issuer Free Writing Prospectus the letter referred to in Section 5(f) with such changes as may be necessary to reflect the amended and (y) it has complied supplemental financial information included or incorporated by reference in the Registration Statement and will complythe Prospectus, as amended or supplemented to the case 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 public accountants may belimit the scope of such letter, with which shall be satisfactory in form to each of you, to the requirements unaudited financial statements, the related "Management's Discussion and Analysis of Rules 164 Financial Condition and 433 applicable to Results of Operations" and any Permitted Free Writing Prospectusother information of an accounting, including financial or statistical nature included in respect such amendment or supplement, unless, in the reasonable judgment of timely filing with the Commissionany of you, legending and record keepingsuch letter should cover other information or changes in specified financial statement line items.
(im) The During the period, if any, specified (whether orally or in writing) in any Terms Agreement, the Company will shall not, without the prior written consent of the RepresentativesPurchaser thereunder, offer, sell, contract to sell, pledge, sell or otherwise dispose of, (or enter into announce the proposed issuance of 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 indirectlydebt securities, including Notes, with terms substantially similar to the filing (or participation in the filing) of a registration statement with the Commission in respect ofNotes being purchased pursuant to such Terms Agreement, 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 in respect 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 commencing on the date hereof borrowings under its revolving credit agreements and ending on the Closing Datelines of credit and issuances of its commercial paper.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration Statement, if not effective at the Execution Time, and any amendment thereto, to become effective. Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement to the Basic Prospectus (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementFinal Prospectus) to the Base Prospectus unless the Company has furnished to you a copy for your prompt review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 the Representatives of such timely filing. The Company will promptly advise the Representatives (1i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2iii) when, prior to termination of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (3iv) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there occurs an event or development as a result of which the 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 circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement Statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ec) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings earning statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158158 under the Act.
(fd) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each any Preliminary Final Prospectus Supplementand, prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, copies of the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or any Agreement Among Underwriters, this Agreement, the Blue Sky Memorandum and any other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review the offering, purchase, sale and delivery of the offering; provided that in no event Shares. For the purposes of this Section 4, "New York Business Day" shall the Company be obligated to qualify to do business in any jurisdiction where it mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not now so qualified a day on which banking institutions in New York are generally authorized or obligated by law or executive order to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subjectclose.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees Each of the Issuer and the Guarantors jointly and severally agree with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company Issuer will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company Issuer has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company The Issuer will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filing. The Company Issuer will promptly advise the Representatives (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company Issuer of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Issuer will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will Issuer shall prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in a form approved by you and shall file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(ciii) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailingunder which they were made at such time, not misleading, the Company Issuer 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.
(div) If, at any time when a prospectus the Final 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly Issuer will (1) promptly notify the Representatives of any such event; (2) as soon as practicable, prepare and file with the Commission, subject to the second sentence of paragraph (ai) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 SupplementProspectus; and (4) promptly supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(ev) As soon as practicable, the Company Issuer will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company WTW and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fvi) Upon request, the Company The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gvii) The Company Issuer and each Guarantor will arrange, if necessary, cooperate with you and counsel for the Underwriters in connection with the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, or taxation in any jurisdiction where it is not now so subject.
(iviii) The Issuer and the Guarantors 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 issued by any of them to facilitate the sale or resale of the Securities.
(ix) The Issuer agrees to pay the costs and expenses relating to the following matters: (1) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Free Writing Prospectus, each Preliminary Prospectus, the Final Prospectus, and each amendment or supplement to any of them; (2) 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 Free Writing Prospectus, each Preliminary Prospectus, the Final 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 preparation, printing, authentication, issuance and delivery of certificates for 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 offering of the Securities; (5) the registration of the Securities under the Exchange Act; (6) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such registration and qualification); (7) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of one counsel for the Underwriters relating to such filings); (8) transportation and other expenses incurred by or on behalf of the Issuer’s representatives in connection with presentations to prospective purchasers of the Securities; (9) the fees and expenses of the Issuer’s accountants and the fees and expenses of counsel (including local and special counsel) for the Issuer and the Guarantors; (10) any fees charged by securities rating services for rating the Securities, (11) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (12) all expenses and application fees related to the listing of the Securities and trading on The International Stock Exchange located in Jersey or such other recognized stock exchange where the Company may list the Securities; and (13) all other costs and expenses incurred by the Issuer and the Guarantors that are incidental to the performance by the Issuer and the Guarantors of their respective obligations hereunder.
(x) Each of the Issuer and each Guarantor agrees that, unless it has obtained or obtainswill obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Issuer that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the CompanyIssuer, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company Issuer with the Commission or retained by the Company Issuer under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheetfinal term sheet prepared and filed pursuant to Section 5(ii) hereof; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III IV hereto. Any such free writing prospectus consented to by the Representatives or the Company Issuer is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company Issuer and each Guarantor agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 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 Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect 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 commencing on the date hereof and ending on the Closing Date.
(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.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior During any period when a prospectus relating to the termination of Securities is required to be delivered under the offering of the SecuritiesAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus (x) unless the Company has furnished you a copy of such proposed amendment or supplement 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, the Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or 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 satisfactory to the Representatives of such timely filingprescribed. The Company will promptly advise the Representatives (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will To prepare a final term sheet, containing solely a description of final terms of the Final Term Sheet Securities and will the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, 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.
(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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunderAct, including in connection with the use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives of any such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3iii) 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 Supplement; and (4iv) supply any supplemented or amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(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.
(f) Upon request, the The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, reasonably request and will maintain such qualifications in effect so long as reasonably required for the distribution of the Securities and and, subject to the proviso in Section 5(k), will pay any fee all fees and expenses (including fees and disbursements of counsel to the Financial Industry Regulatory Authority, Inc., Underwriters) in connection with its review such qualification and in connection with the determination of the offeringeligibility of the Securities for investment under the laws of such jurisdictions as the Representatives may designate; provided that in no event shall the Company be obligated (i) to qualify to do business in any jurisdiction where it is not now so qualified or qualified, (ii) to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, in any jurisdiction where it is not now so subject or (iii) to subject itself to taxation in any jurisdiction if it is not now otherwise so subject.
(ih) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) 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 Sheetfinal 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, if any, Prospectuses included in Schedule III heretohereto and any electronic road show. Any such free writing prospectus Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company) ), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission 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 in respect ofAct, 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 commencing transaction, until the Business Day set forth on the date hereof and ending on the Closing DateSchedule 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 the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder. It is understood, however, that except as provided in this Section and Sections 7 and 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees and disbursements of their counsel and any advertising expenses connected with any offers they may make. The Underwriters severally agree to reimburse the Company for its reasonable, documented, out-of-pocket costs and expenses incurred in connection with the offering of Securities hereby in an amount up to $3,960,000 within five Business Days of receipt by the Representatives from the Company of an invoice documenting such expenses.
Appears in 1 contract
Samples: Underwriting Agreement (Intel Corp)
Agreements. (a) The Company agrees with the several Underwriters that:
(ai) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base 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 supplement to which you reasonably object. Subject to the foregoing sentence, the The Company will cause the Final Prospectus SupplementProspectus, properly completed, and any amendment or supplement thereto to be filed in a form reasonably approved by the Representatives Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representative of such timely filing. The Company will promptly advise the Representatives Representative (1) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b)) or when any Rule 462(b) Registration Statement shall have been filed with the Commission, (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(bii) The Company will prepare If, at any time prior to the filing of the Final Term Sheet and will file the Final Term Sheet Prospectus pursuant to Rule 433(d) within the time required by such Rule.
(c) If there 424(b), any event occurs an event or development as a result of which the Disclosure Package would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (1) notify promptly the Representatives Representative 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.
(diii) 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 Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1) notify the Representatives Representative 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 or new registration statement which will correct such statement or omission or effect such compliance; , (3) 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 Supplement; and (4iv) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(eiv) As soon as practicable, the Company will make generally available to its security holders and to the Representatives 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.
(fv) Upon request, the The Company will furnish to the Representatives Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gvi) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringSecurities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Securities, or taxation in any jurisdiction where it is not now so subject.
(ivii) The Company will not, without the prior written consent of Citigroup Global Markets Inc., (1) 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 affiliate of the Company, other than CIHC, Citigroup Inc., Warburg Pincus LLC, Warburg Pincus Private Equity X L.P. and Warburg Pincus X Partners, L.P.), 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 (2) publicly announce an intention to effect any such transaction, for a period of 90 days after the date of this Agreement, provided, however, that (A) the Company may issue and sell Common Stock 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 (B) 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 90-day restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, then 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 Representative and any co-managers and each individual subject to the restricted period pursuant to the lockup letters described in Section 6(l) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(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 Securities.
(ix) The Company agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the RepresentativesRepresentative, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtainsshall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, Prospectuses included in Schedule III heretoII hereto and any electronic road show authorized by the Company. Any such free writing prospectus consented to by the Representatives 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.
(ix) The Company will notagrees to pay the costs and expenses relating to the following matters: (1) the preparation, without printing or reproduction and filing with the prior written consent Commission of the RepresentativesRegistration Statement (including financial statements and exhibits thereto), offereach Preliminary Prospectus, sellthe Final Prospectus and each Issuer Free Writing Prospectus, contract and each amendment or supplement to sell, pledge, or otherwise dispose of, any of them; (2) the printing (or enter into reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any transaction which is designed toof them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (3) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or might reasonably transfer taxes in connection with the original issuance and 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 offering of the Securities; (5) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (6) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (7) any filings required to be expected tomade with the Financial Industry Regulatory Authority, result 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 Company representatives in connection with presentations to prospective purchasers of the disposition Securities; (whether by actual disposition or effective economic disposition due 9) 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 CIHC; and (10) all other costs and expenses incident to cash settlement or otherwise) the performance by the Company or any affiliate and CIHC 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 in respect 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 commencing on the date hereof and ending on the Closing Datetheir obligations hereunder.
(jb) The Company CIHC agrees with the several Underwriters that:
(i) CIHC 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.
(ii) CIHC 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 (1) any material change in the Company’s condition (financial or otherwise), prospects, earnings, business or properties; (2) any change in information in the Registration Statement, the Final Prospectus, any Preliminary Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto relating to CIHC; or (3) any new material information relating to the Company or relating to any matter stated in the Final Prospectus or any Free Writing Prospectus which comes to the attention of CIHC.
(iii) CIHC represents that it has not prepared or had prepared on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any written materials in connection with the offer or sale of the Securities.
Appears in 1 contract
Agreements. The Company Each of the Transaction Entities, jointly and severally, agrees with the several Underwriters Managers that:
(a) Prior During any period when delivery of a prospectus relating to the termination of Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 153 or 172 or similar rules) to be delivered under the offering of the SecuritiesSecurities Act, the Company will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus Supplement) to the Base Prospectus unless the Company has furnished you to the Managers a copy for your its review prior to filing and will not file any such proposed amendment or supplement to which you the Managers reasonably object. Subject to the foregoing sentence, the The Company will cause complete the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives Managers, and will file such Prospectus Supplement on the Initial Filing Date with the Commission pursuant to, and by the time required by, the applicable paragraph of Rule 424(b) and will cause any additional supplement to the Prospectus to be completed, in a form approved by the Managers, and will file such supplement with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed thereby and will provide evidence satisfactory to the Representatives Managers of such timely filing. The Company will promptly advise the Representatives Managers (1i) when any supplement to the Final Prospectus Supplement, and any amendment or supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2ii) when, prior to termination during any period when the delivery of a prospectus (whether physically or through compliance with Rule 153 or 172 or any similar rules) is required under the Securities Act in connection with the offering or sale of the offering of the SecuritiesShares, any amendment to the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Shares for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company Unless it determines to terminate this Agreement pursuant to Section 8(a), each of the Transaction Entities will use its best reasonable efforts to prevent the issuance of any such stop order or the suspension occurrence of any such qualification 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 of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best reasonable efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) The Company will prepare If, during any period when the Final Term Sheet and will file delivery of a prospectus relating to the Final Term Sheet Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 433(d153 or 172 or similar rules) within to be delivered under the time required by such Rule.
(c) If there Securities Act, any event occurs an event or development as a result of which the Disclosure Package (taken as a whole) would include an any untrue statement of a material fact or would omit to state a any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made or the circumstances then prevailing, prevailing not misleading, the Company will (i) promptly notify promptly the Representatives Managers so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) subject to compliance with Section 4(a), amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to the Managers in such quantities as the Managers may reasonably request.
(dc) If, at During any time period when the delivery of a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)153 or 172 or similar rules) to be delivered under the Securities Act , any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement to comply with the Securities Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Managers of any such event; , and (2ii) unless it has terminated this Agreement pursuant to Section 8(a), (a) prepare and file with the Commission, subject to the second sentence of paragraph (acompliance with Section 4(a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (3b) 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 Supplement; and (4c) supply any amended or supplemented Final Prospectus Supplement to you the Managers in such quantities as you the Managers may reasonably request.
(ed) As soon as reasonably practicable, the Company will make generally available to its security holders and to the Representatives Managers 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.
(fe) Upon request, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, For so long as delivery of a prospectus by an Underwriter or dealer the Managers may be required by the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172153 or 172 or similar rules), the Company will furnish to the Managers and counsel for the Managers, without charge, as many copies of each Preliminary the Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Managers may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gf) The Company will use its commercially reasonable efforts to arrange, if necessary, for the qualification of the Securities Shares for sale under the securities or blue sky laws of such jurisdictions as the Representatives Managers may designate, reasonably designate and will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offeringShares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Shares, in any jurisdiction where it is was not now previously so subject.
(ig) The Company agrees with the Managers that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the RepresentativesManagers, and (ii) each Underwriter, severally and not jointly, agrees the Managers agree with the Company that, unless it has they have or shall have obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and or they, as applicable, will not make any offer relating to the Securities Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III I hereto. Any such free writing prospectus consented to by the Representatives Managers or the Company Company, as applicable, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (xi) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (yii) it has complied and will comply, as the case may be, in all material respects, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(ih) The During the period beginning on and including the first Business Day immediately prior to the date on which the Company has instructed any Manager to make sales of Shares under this Agreement through and including the first Business Day immediately following the related Settlement Date, the Company will not, without the prior written consent of the Representatives, not offer, sell, contract to sell, pledge, or otherwise dispose of, of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition 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 Act in respect ofAct, any debt other shares of Common Stock or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction for a period commencing on without (i) giving the Managers at least five Business Days’ prior written notice specifying the nature of the proposed transaction and the date hereof of such proposed transaction and ending on (ii) the Closing Date.
Managers suspending acting under this Agreement for such period of time requested by the Company or as deemed appropriate by the Managers in light of the proposed transaction; provided, however, that the Company may (ji) The grant stock options, restricted stock or long-term incentive Units (“LTI Units”) to employees, consultants or directors pursuant to the terms of a plan in effect at that time, (ii) issue Common Stock pursuant to: (A) the exercise of stock options; or (B) the redemption of Units outstanding at that time, including Units issued upon conversion of LTI Units outstanding at that time; provided, that the Company will not take, directly notify the Managers promptly in writing upon receipt by the Company 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 Operating Partnership of any security notice of redemption with respect to such Units (other than with respect to the Company redemption of LTI Units); (iii) issue Common Stock pursuant to facilitate the sale or resale Company’s dividend reinvestment plan (if any); (iv) issue Common Stock pursuant to the offers to sell, solicitation of the Securities.offers to buy and sales of Shares pursuant to this Agreement; and (v)
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters you that:
(a) Prior to the termination of the offering of the SecuritiesNotes, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus (including except for (i) periodic or current reports filed under the Final Prospectus Exchange Act, (ii) a Pricing Supplement or any Preliminary Prospectus Supplement(iii) a supplement relating to an offering of debt securities other than the Base Prospectus Notes) unless the Company has furnished each of you a copy for your review prior to filing and will not file given each of you a reasonable opportunity to comment on any such proposed amendment or supplement to which you reasonably objectsupplement. Subject to the foregoing sentence, the Company will cause each supplement to the Final Prospectus Supplement, properly completed, and any amendment or supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) 424 within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filingprescribed. The Company will promptly advise the Representatives each of you (1i) when the Final Prospectus SupplementProspectus, and any amendment or supplement thereto, and any Issuer Free Writing Prospectus, shall have been filed (if required) with the Commission pursuant to Rule 424(b)424, (2ii) when, prior to the termination of the offering of the SecuritiesNotes, any amendment to of the Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional information, (4iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will use its 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 reasonably possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicablethereof.
(b) The Company will prepare If, at any time prior to a Closing Date for any of the Final Term Sheet and will file the Final Term Sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If there Notes, any event occurs an event or development as a result of which the Disclosure Package Time of Sale Information for such Notes as then supplemented 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 circumstances then prevailingunder which they were made, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.
(d) Ifif, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, any event occurs as a result of which the Final Prospectus Supplement as then supplemented would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if, at any time prior to a Closing Date for any of the Notes, it shall be necessary to amend the Registration Statement or to supplement the Time of Sale Information for such Notes to comply with the Act or the Exchange Act or the respective rules thereunder, or if, at any time when a prospectus relating to the Notes is required to be delivered under the Act, it shall be necessary to amend the Registration Statement or to supplement the Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will (i) notify each of you to suspend solicitation of offers to purchase Notes (and, if so notified by the Company, each of you shall forthwith suspend such solicitation and cease using the Prospectus as 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 which will correct such statement or omission or effect such compliance and (iii) supply any supplemented Time of Sale Information or Prospectus, as the case may be, 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 paragraphs (g), (j), (k) and (l) 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 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 to each of you an earnings statement or statements of the Company and the Subsidiary 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 (except as otherwise provided herein), a reasonable number of copies of the 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.
(f) The Company will arrange for the qualification of the Notes for sale under the laws of such jurisdictions as any of you may designate, will maintain such qualifications in effect so long as required for the 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, however, that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction, to pay filing fees and other expenses in connection therewith in the aggregate exceeding $4,000, or to comply with any other requirement reasonably deemed by the Company to be unduly burdensome.
(g) 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 Commission under the Exchange Act and (iii) such other information concerning the Company as you may reasonably request from time to time.
(h) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement, including the fees and disbursements of its accountants and counsel, the cost of printing or other production and delivery of the Registration Statement, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and all other documents relating to the offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including reasonable fees of counsel, incurred pursuant to Section 4(f), the fees and disbursements of the Trustee and the fees of any ratings agency that rates the Notes, (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 aggregate not to exceed $2,500 per Agent for the term of this Agreement, and (iii) pay the reasonable fees and expenses of your counsel incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes will be deemed to be a new making to you of the representations and warranties of the Company in Section 1 (except that such representations and warranties shall be deemed to relate solely to the Registration Statement as then amended and to the Prospectus as then amended and supplemented to relate to such Notes).
(j) 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) 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 the certificate referred to in Section 5(d) but modified to relate to the last day of the fiscal quarter for which financial statements of the Company were last filed with the Commission and 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.
(k) 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), the Company shall furnish or cause to be furnished promptly to each of you a written opinion, satisfactory to you, by counsel for the Company, 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 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 registered independent public accounting firm 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 during the term of this Agreement) for which the Company has instructed the Agents to suspend the solicitation of offers to purchase Notes with respect to any Agent who is not a Purchaser holding Notes during any such period pursuant to any 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 (j), (k) and (l) of this Section 4, but only to the extent of delivering or causing to be delivered the 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 prior periods be delivered.
(o) Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to each of the Agents and their counsel a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Agents reasonably object.
(p) If at any time after the Time of Sale for any Notes and prior to the Closing Date for such Notes (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information for such Notes as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made circumstances, not misleading, misleading or if (ii) it shall be is necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus Supplement such Time of Sale Information to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus Supplement, 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 or new registration statement which will correct such statement or omission or effect such compliance; (3) 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 Supplement; and (4) supply any amended or supplemented Final Prospectus Supplement to you in such quantities as you may reasonably request.
(e) As soon as practicablelaw, the Company will make generally available immediately notify the Agents thereof and forthwith prepare and, subject to its security holders Section 4(o), file with the Commission (to the extent required) and furnish to the Agents and to such dealers as the Representatives an earnings statement Agents may designate, such amendments or supplements to such Time of Sale Information as may be necessary so that the statements in such Time of Sale Information as so amended or supplemented will not, in the light of the Company and its subsidiaries which circumstances, be misleading or so that such Time of Sale Information will satisfy the provisions of Section 11(a) of the Act and Rule 158comply with law.
(fq) Upon requestThe Company shall prepare a Term Sheet with respect to each offering of Notes, the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies containing solely a description of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy final terms of the Registration Statement Notes and the offering thereof, which shall be substantially in the form of Exhibit D attached hereto (without exhibits thereto) anda "Term Sheet"), so long as delivery of a prospectus by an Underwriter or dealer may be required by and shall file such Term Sheet with the Act (including in circumstances where such requirement may be satisfied Commission pursuant to Rule 172), as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale 433 under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities in any jurisdiction where it is not now so subject.
(i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or obtains, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by 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 Act within the meaning of Section 16 of the Exchange Act in respect of, any debt securities issued or guaranteed time required by the Company (other than the Securities) or publicly announce an intention to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateRule.
(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.
Appears in 1 contract
Samples: Distribution Agreement (Central Hudson Gas & Electric Corp)
