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 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 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. (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 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. 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 2007-C3), Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2), Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2006-C1)
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 2007-C9 Mortgage Trust), Underwriting Agreement (CD 2007-Cd5 Mortgage Trust), Underwriting Agreement (COMM 2006-C8 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. (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 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. 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. 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, 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) 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. 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 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. (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) 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 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 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 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 Corp), Distribution Agreement (Amb Property Lp)
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. (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 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 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 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 requestThe 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, the Conversion Shares, the Warrants 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, the Warrant Agreement, the Shares, the Warrants 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, including, without limitation, the Warrant Agent, (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$75,000.
(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 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 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 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 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 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 untrue 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 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 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; , (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 Representative an earnings statement or statements of the Company and its subsidiaries Subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(fe) Upon request, the The Company will furnish to the 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.
(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 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 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 heretohereto 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 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 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 transaction, until the date hereof set forth on Schedule I hereto; provided, however, that the Company may (A) issue and ending 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, (B) issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (C) file a registration statement with the Commission on Form S-8 relating to the Closing Dateoffering of securities pursuant to the terms of any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time, (D) issue Common Stock to directors in lieu of cash as payment of Board of Director fees, and (E) issue the Securities to be sold hereunder.
(ji) 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, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company will apply the net proceeds from the sale of the Securities as described in the Final Prospectus under the heading “Use of Proceeds.”
(k) The Company will use its reasonable best efforts to list, subject to notice of issuance, the Securities on the New York Stock Exchange (“NYSE”).
(l) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the NYSE; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses 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.
(m) The Company acknowledges the requirement under listing rule 14.3.4 of the UK Listing Rules to apply for admission to listing of the Securities on the official list of the London Stock Exchange (“UK Admission”) and hereby undertakes and confirms to the Representative that it shall as soon as possible and in any event within one year of the Closing Date, at its own expense, make application:
(i) to the Financial Services Authority of the United Kingdom (“FSA”):
(1) for formal approval of a prospectus relating to the offering and sale of the Securities as a prospectus pursuant to the UK Prospectus Rules; and
(2) for the admission of the Securities to the official list of the London Stock Exchange; and
(ii) to the London Stock Exchange plc for the admission of the Securities to trading on its market for listed securities, and that it shall (i) supply to the FSA and London Stock Exchange plc respectively all documents required to be provided by the Company, (ii) give such undertakings, (iii) execute all such documents, (iv) pay all such fees and (v) generally do or procure to be done all such things as may required in relation to such applications for the purpose of obtaining the approval and grant of the UK Admission.
Appears in 1 contract
Samples: Underwriting Agreement (Endeavour International Corp)
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 to the 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 pricing information including the Final Prospectus Supplement maturity dates, interest rates, issuance prices or other similar terms of any Preliminary Prospectus SupplementNotes or (iii) a supplement relating to an offering of 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) 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 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 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 (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.
(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 press releases or announcements furnished to news or wire services and any other material press releases and announcements. The Company will promptly notify each of you of (i) any decrease in the rating of the Notes or any other debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or (ii) any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, as soon as the Company learns of any such decrease or notice.
(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) 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 Authority, Inc., in connection with its review legality of the offeringNotes for purchase by institutional investors; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that which would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities Notes, in any jurisdiction where it is not now so subject.
(ig) The Company agrees thatshall furnish to each of you such information, unless it has obtained or obtainsdocuments, 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, 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 made any sale of the Notes is consummated, (i) pay all expenses incident to the performance of its obligations under this Agreement and will not make any offer 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 Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined offering, the cost of preparing, printing, packaging and delivering the Notes, the fees and disbursements, including fees of counsel, incurred in Rule 405) required to be filed by compliance with Section 4(f), 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 fees and disbursements of the parties hereto shall be deemed to have been given in respect Trustee and the fees of any agency that rates the Free Writing ProspectusesNotes, (ii) reimburse each of you as requested for all out-of-pocket expenses (including without limitation advertising expenses), if any, included incurred by you 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 connection with this Agreement and (yiii) it has complied pay the fees and will comply, as the case may be, expenses of your counsel incurred in connection with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keepingthis Agreement.
(i) 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 to be issued and sold by the Company on or prior to such settlement date, the aggregate amount of Securities (including any Notes) which have been issued and sold by the Company will not exceed the lesser of the principal amount of Securities registered pursuant to the Registration Statement and the limit of the bonded indebtedness of the Company as approved from time to time by the Company's shareholders. The Company will inform you promptly upon your request of the aggregate amount of Securities registered under the Registration Statement which remain unsold.
(j) Each time that the Registration Statement or the Prospectus 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 interest rates, the issuance prices or other similar terms of any Notes sold pursuant hereto), the Company will deliver or cause to be delivered promptly to each of 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 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) 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 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 fiscal year, 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 an opinion of counsel should be furnished), the Company shall furnish or cause to be furnished promptly to each of you a written opinion of Xxxxxxx, Xxxxx, Rose & Xxxxx (or other counsel reasonably satisfactory to the Agents), counsel of the Company satisfactory to each of you, 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) hereof 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 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 include or incorporate amended or supplemental financial information, the Company shall cause its independent public accountants promptly to furnish each of you a letter, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to each of you, of the same tenor as the letter referred to in Section 5(e) hereof 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 public accountants may limit the scope of such letter, which shall be satisfactory in form to each of you, to the unaudited financial statements, the related "Management's Discussion and Analysis of Financial Condition and Results of Operations" and any other information of an accounting, financial or statistical nature included in such amendment or supplement, unless, in 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 (whether orally or in writing) in any Terms Agreement, the Company shall not, without the prior written consent of the RepresentativesPurchaser thereunder, 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 Notes being sold pursuant to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement).
(jn) The Company confirms as of the date hereof, and each acceptance by the Company of an offer to purchase Notes will be deemed an affirmation, that the Company 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 the 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 becomes effective with the Commission or with the Florida Department of Banking and Finance (the "Department"), whichever date is later, or if the information reported in the 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 provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department.
(o) The Company will not takeissue and sell Notes in excess of $__________ unless, 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 as of the price Closing Date for each issuance beyond such $__________ limit, the Company furnishes or causes to be furnished to each of any security you (a) resolutions of the shareholders of the Company to facilitate certified by the sale or resale Secretary of the SecuritiesCompany approving the issuance by the Company of additional bonded indebtedness, which approval would cover the Notes to be issued on such Closing Date, (b) resolutions of the Board of Directors of the Company approving the issuance by the Company of the Notes to be issued on such Closing Date and (c) the written opinion of Xxxxxxx Xxxxx Xxxx & White LLP (or such other counsel reasonably satisfactory to the Agents), counsel for the Company, satisfactory to each of you, with respect to such issuance, of the same tenor as the opinions referred to in Sections 5(b)(v) and (x).
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 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.Writing
Appears in 1 contract
Samples: 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 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 objectobject within 24 hours of the Company furnishing you with such proposed 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)) 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 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 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 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 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 Supplement, the Final Prospectus Supplement Disclosure Package and each Issuer Free Writing the 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 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 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 (i) 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 (ii) taxation as a foreign corporation 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 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 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 180 days after the date of the Underwriting Agreement, provided, however, that the Company may (i) issue and sell the Securities to be sold hereunder, (ii) 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 (iii) the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (iv) file one or more registration statements on Form S-8 or (v) 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 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 shares or other securities agrees to 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 180-day restricted period.
(jh) 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(l) 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, any action designed to or that would constitute or that might would reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the Disclosure Package and the 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, the Disclosure Package and the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (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 and documented 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 and documented fees and expenses of counsel for the Underwriters relating to such filings); provided that the reasonable fees and expenses of counsel for the Underwriters relating to subclause (vi) and (vii) of this Section 5(j) shall not exceed $20,000; (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; provided, however, that the Company shall be responsible for half of the cost and expenses of any aircraft chartered in connection with the marketing of the offering of the Securities and the Underwriters shall be responsible for the balance; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder; provided that except as provided in this Section 5 and in Section 7 hereof, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel and any transfer taxes on the Securities they may sell.
(k) The Company agrees to pay (1) all reasonable fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program, (2) all reasonable costs and expenses incurred by the Underwriters in connection with the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of copies of the Directed Share Program material and (3) all stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program.
(l) 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.
(m) 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 Act and (b) completion of the 180-day restricted period referred to in Section 5(g) hereof.
(n) 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 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 use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested. Furthermore, the Company covenants with the Underwriters that the Company will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.
Appears in 1 contract
Samples: Underwriting Agreement (Onconova Therapeutics, Inc.)
Agreements. The Each of the Company and the Selling Stockholder, in each case as noted in this Section 5, 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 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 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 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 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 a reasonable number of copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in 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 any taxation of its income or any 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 Each of the Company and the Selling Stockholder agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent (not to be unreasonably withheld) 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 heretoC-1 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 (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.
(ih) The During a period of 90 calendar days from the date of this Agreement, the Company will not, without the prior written consent of the RepresentativesBarclays Capital Inc. (“Barclays Capital”), (i) directly or indirectly, 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, of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file any registration statement under the Act with respect to any of the foregoing or (or ii) enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company swap or any affiliate of the Company other agreement or any person transaction that transfers, in privity with the Company whole or any affiliate of the Company) in part, directly or indirectly, including the economic consequence of ownership of the Common Stock, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) the Securities to be sold hereunder, (b) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof, (c) any shares of Common Stock, restricted stock units or any securities convertible into or exercisable or exchangeable for Common Stock issued or options to purchase Common Stock granted pursuant to existing employee benefit plans of the Company referred to in the Disclosure Package and the Final Prospectus, (d) any shares of Common Stock issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Disclosure Package and the Final Prospectus, (e) the filing (or participation in the filing) of a registration statement or prospectus supplement in compliance with the Commission in respect ofrequest of any person who has the right, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 as of the Exchange date hereof, to require the Company to file such registration statement or prospectus supplement, (f) shares of Common Stock (or securities convertible into or exchangeable for shares of Common Stock) issued in connection with the bona fide strategic acquisition of assets, a technology or a business or the bona fide establishment of a strategic partnership or collaboration (including a joint venture) complementary to the Company’s business, (g) any registration statement on Form S-8 under the Act in with respect ofto the foregoing clauses (c) or (d) or on Form S-4 under the Act with respect to the foregoing clause (f), (h) any debt securities issued or guaranteed issue, transfer and exchange of shares of Series B Preferred Securities by the Company for shares of Common Stock with Barclays Bank PLC or one or more of its affiliates, as contemplated in the Exchange Agreement, dated as of May 21, 2012, between the Company and Barclays Bank PLC and the issuance of shares of Common Stock upon any subsequent automatic conversion thereof, or (other than i) the Securities) or publicly announce an intention to effect any such transaction for a period commencing on issuance of Common Stock in connection with the date hereof PNC Exchange (as defined and ending on described in the Closing DatePreliminary Prospectus and the Final Prospectus).
(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 will use its best efforts to effect and maintain the listing of the Securities on the New York Stock Exchange.
(k) The Company, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the regulations of the Commission promulgated thereunder.
(l) The 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, if any, of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with 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; (x) the fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder. The provisions of this subsection (l) shall not affect any agreement that the Company and the Selling Stockholder have made or may make for the sharing of such costs and expenses.
(m) The Selling Stockholder will pay all expenses incident to the performance of their respective obligations under, and the consummation of the transactions contemplated by, this Agreement including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters and their transfer between the Underwriters pursuant to an agreement between such Underwriters and (ii) the fees and disbursements of their respective counsel and other advisors. The provisions of this subsection (m) shall not affect any agreement that the Company and the Selling Stockholder have made or may make for the sharing of such costs and expenses.
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 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 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 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 1940 Act.
Appears in 1 contract
Samples: Underwriting Agreement (Clear Channel Communications Inc)
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 $2,732,170 million 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 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 ---------- 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 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. (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. 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 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 Each of the Company and the Operating Partnership agrees with the several Underwriters Underwriters, the Forward Sellers and the Forward Purchasers that:
(a) Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus unless the Company has furnished you the Representatives, the Forward Sellers and the Forward Purchasers a copy for your their 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 to which the Representatives Representatives, the Forward Sellers and the Forward Purchasers do not reasonably object with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representatives, the Forward Sellers and the Forward Purchasers of such timely filing. The Company will promptly advise the Representatives Representatives, the Forward Sellers and the Forward Purchasers (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 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 or the Operating Partnership 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 Each of the Company and the Operating Partnership 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 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 Package, taken as a whole, 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, under which they were made not misleading, the Company will promptly notify the Representatives, the Forward Sellers and the Forward Purchasers and will promptly amend or supplement in a manner reasonably satisfactory to the Representatives so that any use of Representatives, the Forward Sellers and the Forward Purchasers, at its own expense, the Disclosure Package may to eliminate or correct such untrue statement or omission and the Company shall cease to use the Disclosure Package until it is so amended or supplemented.
(dc) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus 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 thereunderAct, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Representatives, the Forward Sellers and the Forward Purchasers of such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (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, but in any event not later than eighteen months after the effective date of the Registration Statement, the Company will make generally available to its security holders and to the Representatives Representatives, the Forward Sellers and the Forward Purchasers 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, the Forward Sellers and the Forward Purchasers and counsel for the Underwriters, the Forward Sellers and the Forward Purchasers without charge, signed copies (which may be electronic 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, 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.
(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 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 Neither the Company agrees thatnor the Operating Partnership will, unless it has obtained or obtains, as the case may be, without the prior written consent of the Representatives, and 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 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 under the Act (except for a registration statement on Form S-4 relating to an acquisition of a real property company or a registration statement on Form S-8 (including any amendments or supplements thereto) in connection with shares of Common Stock authorized for issuance pursuant to the terms of any plan in effect as of the date of the 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, any shares of Common Stock (other than the Shares), limited partnership units of the Operating Partnership, or any securities convertible into, or exercisable, or exchangeable for, any of the foregoing, or publicly announce an intention to effect any such transaction, until 45 days after the date of the Prospectus, provided, however, that the Company may (i) grant stock options, restricted stock, restricted stock units or long-term incentive Units in the Operating Partnership (“LTIP Units”) to employees, consultants or directors pursuant to the terms of a plan in effect as of the date of the Prospectus, (ii) issue Common Stock or Operating Partnership units, as applicable pursuant to: (A) the exercise, vesting, settlement, conversion or redemption, as applicable, of such options, restricted stock units and LTIP Units; (B) the redemption of Units outstanding on the date of the Prospectus, including Units issued upon conversion of LTIP Units outstanding on the date of the Prospectus; provided, that the Company will notify the Representatives promptly in writing upon receipt by the Company or the Operating Partnership of any notice of redemption with respect to such Units (other than with respect to the redemption of LTIP Units) or (C) the exercise, vesting, settlement, conversion or redemption, as applicable, of any stock options, restricted stock units or LTIP Units outstanding as of the date of the Prospectus, (iii) issue Common Stock pursuant to the Company’s dividend reinvestment plan (if any), (iv) issue Common Stock pursuant to the Company’s employee stock purchase plan (if any), (v) enter into and issue and deliver Common Stock pursuant to the Forward Sale Agreements, (vi) issue (x) Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of real property or real property companies and (y) Common Stock upon conversion or exchange of any securities issued pursuant to (vi)(x) above, (vii) file shelf registration statements (including any amendments or supplements thereto) in connection with existing contractual commitments, and (viii) issue shares of Common Stock upon the conversion of any of the Company’s perpetual preferred stock pursuant to a delisting change of control transaction.
(h) Until and including the Closing Date or the latest Date of Delivery (whichever is later), the Company and the Operating Partnership will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and will use its reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(i) Neither the Company nor the Operating Partnership will take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or sell, bid for, purchase or pay any person (other than as contemplated by this Agreement) any compensation for soliciting purchases of the Shares.
(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), the 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, the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement and the Forward Sale Agreements and any documents related hereto and thereto, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering, purchase, sale and delivery of the Shares; (v) the registration of any Company Shares and any shares issuable pursuant to the Forward Sale Agreements under the Exchange Act and the listing of the Shares on the NYSE; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified in Section 6(f) (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 the Company and the Operating Partnership in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company’s and the Operating Partnership’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Operating Partnership; and (x) all other costs and expenses incident to the performance by the Company and the Operating Partnership of their respective obligations under this Agreement and the Forward Sale Agreements.
(k) The Company will use the net proceeds from the sale of the Company Shares, if any, and the net proceeds, if any, due upon settlement of the Forward Sale Agreements, in each case, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(l) Each of the Company and the Operating Partnership agrees that, unless it has or shall have obtained the prior written consent of the Representatives, the Forward Sellers and the Forward Purchasers, and each Underwriter, 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 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 hereto. Any such free writing prospectus consented to by the Representatives Representatives, the Forward Sellers and the Forward Purchasers or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Each of the Company and the Operating Partnership 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.
(im) The Company will notuse its best efforts to meet the requirements to qualify, without for the prior written consent of taxable year ending December 31, 2021, for taxation as a REIT under the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, Code.
(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 otherwisen) by the Company or any affiliate Each of the Company or any person in privity with and the Operating Partnership will use its best efforts to ensure that 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 and its subsidiaries will not be an “investment company” within the meaning of Section 16 the Investment Company Act of 1940, as amended, and 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 rules and ending on the Closing Dateregulations thereunder.
(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 (Digital Realty Trust, L.P.)
Agreements. The Company agrees and the Guarantors agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, none of the Company Company, TW NY or TWE will not file any amendment of to the Registration Statement or supplement (including the Final Prospectus Supplement or any Preliminary Prospectus SupplementFinal Prospectus) to the Base Prospectus unless the Company or a Guarantor has furnished you a copy for your review a reasonable amount of time prior to filing and or will not file any such proposed amendment or supplement to which you reasonably objectobject on a timely basis (other than filings of documents pursuant to Section 13(a), 14 or 15(d) under the Exchange Act). Subject to the foregoing sentence, the Company and the Guarantors 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 Company, TW NY or TWE 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 to the Registration Statement, Statement or for any supplement to the Final Prospectus Supplement or for any additional informationinformation relating to the offering of the Securities, (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 Company, TW NY or TWE 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 Each of the Company, TW NY or TWE 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 the Final Term Sheet Securities, substantially in the form attached hereto as Schedule III and the Company will file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required by such Rule. Any such final term sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(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 supplementedsupplemented and will promptly prepare, at its own expense, an amendment or supplement.
(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 and the Guarantors 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 amendment, 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 and the Guarantors will make generally available to its their respective security holders and to the Representatives an earnings statement or statements of each of the Company Company, TW NY and its TWE and their respective subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon requestIf and to the extent specified in Schedule I, each of the Company Company, TW NY and TWE will use its reasonable efforts to cause the Securities to be duly authorized for listing or trading on a securities exchange or inter-dealer quotation system and to be registered under the Exchange Act.
(g) The proceeds of the offering of the Securities will be applied as set forth in the Disclosure Package and the Final Prospectus.
(h) The Company, TW NY and TWE 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 any Preliminary Prospectus SupplementFinal Prospectus, the Final Prospectus Supplement and each any 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 and the Guarantors will pay and bear all costs and expenses incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits), the Base Prospectus, any Preliminary Final Prospectus, the Final Prospectus and any Issuer Free Writing Prospectus, and any amendments or supplements thereto, and the cost of furnishing copies thereof to the Underwriters, (ii) the preparation, printing and distribution of this Agreement, the Indenture, the Securities, any Blue Sky Survey and any Legal Investment Survey, (iii) the delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s and the Guarantors’ counsel and the accountants required hereby to provide “comfort letters,” (v) the qualification of the Securities under the applicable securities laws in accordance with Section 4(j) and any filing for review of the offering with the Financial Industry Regulatory Authority (“FINRA”), including filing fees and reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with any Blue Sky Survey and any Legal Investment Survey, (vi) any fees charged by rating agencies for rating the Securities, (vii) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee, in connection with the Indenture and the Securities, (viii) any expenses and listing fees in connection with the listing of the Securities on the NYSE, (ix) the cost and charges of any transfer agent or registrar and (x) the costs of qualifying the Securities with Clearstream and Euroclear.
(j) The Company and the Guarantors will arrange, if necessary, for the qualification of the Securities for distribution, offering and 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 legality of the offeringSecurities for purchase by institutional investors; provided provided, however, that none of the Company, TW NY or TWE shall be required to (i) qualify as a foreign corporation or as a dealer in no event shall the Company be obligated to qualify to do business securities in any jurisdiction where it is would not now so qualified or otherwise be required to take qualify but for this Section 4(j), (ii) file any action that would subject it general consent to service of process in suits, other than those arising out of the offering or sale of the Securities (iii) subject itself to taxation in any such jurisdiction where if it is not now so subject.
(ik) The Company agrees that, unless it has obtained or obtains, as the case may be, obtains the prior written consent of the Representatives, which consent will not be unreasonably withheld or delayed, and (ii) each Underwriter, severally 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 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 433Free Writing Prospectus, other than the final term sheet prepared and filed pursuant to Section 4(b) hereto or a free writing prospectus containing Free Writing Prospectus that contains only the preliminary terms of the Securities or their offering or information contained that is included in the Preliminary Final Term SheetProspectus or 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 Issuer 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 Company, as the case may be, 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 agrees to pay the prior written consent of required Commission filing fees relating to 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 Securities 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 456(b)(1).
(jm) The Company will not take, directly or indirectly, shall comply with the terms of any action designed lock-up agreement specified in Schedule I hereto with respect to or that would constitute or that might reasonably be expected to cause or result in, under sales and dispositions of underwritten Securities.
(n) In connection with the Exchange Act or otherwise, stabilization or manipulation offering of the price of any security Securities, until the Representatives on behalf of the Underwriters shall have notified the Company to facilitate of the sale or completion of the resale of the Securities, neither the Company nor any of its controlled subsidiaries has or will, either alone or with one or more other persons, bid for or purchase, for any account in which it or any of its controlled subsidiaries has a beneficial interest, any Securities or attempt to induce any person to purchase any Securities; and neither it nor any of its controlled subsidiaries will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Securities.
(o) The Company and the Guarantors have taken commercially reasonable efforts to cause the Debt Securities to be listed for trading on the NYSE as of the date of issuance of the Debt Securities, or as promptly as practicable thereafter.
(p) The Company and the Guarantors hereby authorize Barclays Bank PLC in its role as stabilizing manager (the “Stabilizing Manager”) to make adequate public disclosure regarding stabilization of the information required in relation to such stabilization by Commission Regulation (EC) 2273/2003. The Stabilizing Manager for its own account may, to the extent permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the market price of the Debt Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Company and any loss resulting from over-allotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph (p) shall be construed so as to require the Company to issue in excess of £625,000,000 in aggregate principal amount of Debt Securities. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and directives.
Appears in 1 contract
Agreements. The Company agrees and the Operating Partnership agree 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 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 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 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 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 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.
(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 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 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 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 Neither the Company will notnor the Operating Partnership will, 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 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 exercisable, or exchangeable for, shares of Common Stock or shares of any class of capital stock of the Company (other than the Securities) or Units of the Operating Partnership (other than the New Common Units or Option Units) 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 commencing on transaction, until 90 days after the date of the Final Prospectus, provided, however, that (i) the Company may issue and sell Common Stock (or options to purchase Common Stock) pursuant to the Sun Communities, Inc. Equity Incentive Plan or the Company’s 2004 Non-Employee Director Stock Option Plan as in effect as of the date hereof and ending the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (ii) the Operating Partnership may issue common Units issuable upon the conversion of preferred Units outstanding as of the Execution Time and (iii) the Operating Partnership may issue Units in connection with the acquisition of property provided that the number of securities issued in such transactions shall not exceed $75 million in the aggregate and provided further that the recipient of such securities agrees to substantially the terms of this paragraph (h) for the period set forth above. 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 Closing Datelast day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. The Company will provide the Representatives 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.
(ji) The Neither the Company nor the Operating Partnership will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(j) The Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Sxxxxxxx-Xxxxx Act, and will use its commercially reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sxxxxxxx-Xxxxx Act.
(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 Underwriting Agreement (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 (“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); (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.
(l) The Company and the Operating Partnership will use the net proceeds received by the Company from the sale of the Securities in the manner specified in the Preliminary Prospectus and the Final Prospectus under the caption “Use of Proceeds.”
(m) The Company will use its best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2011 and the taxable year ending December 31, 2012, as a REIT under the Code and the Operating Partnership will use its best efforts to meet the requirements to qualify, for the taxable year ended December 31, 2011 and the taxable year ending December 31, 2012, as a partnership under the Code.
Appears in 1 contract
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 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 each 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 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 each Preliminary Prospectus and 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 each Preliminary Prospectus or 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 the Subsidiary 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, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, hedge 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 (i) any filings in respect of the transaction contemplated hereby, (ii) any registration statements on Form S-8 or (iii) any amendment filed in respect of a registration statement, the initial filing of which was made prior to the date hereof, 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 issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
(h) The Company will not take, directly or indirectly (without giving effect to activities by the Underwriters), 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 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 a period commencing 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 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) 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 any blue sky memorandum (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification, provided that the amount of the counsel’s fees payable pursuant to this clause (v) shall not exceed $10,000 in the aggregate); (vi) 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 that the amount of the counsel’s fees payable pursuant to this clause (vi) shall not exceed $25,000 in the aggregate); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the date Securities, if any; provided that the Company shall only be responsible for half of the cost of any transportation, if required (with the Underwriters being responsible for the other half of such expenses); (viii) the fees and expenses of the Company’s accountants, reserve engineers and other auditors providing letters to the Underwriters pursuant to Section 6 hereof and ending on the Closing Datefees 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; it being understood that the Selling Stockholder agrees to pay the fees and expenses of counsel for the Selling Stockholder and all other costs and expenses incident to the performance by the Selling Stockholder 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.
(k) 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 or the circumstances then prevailing not misleading, the Company will (i) notify promptly the Representatives so that use of the Written Testing-the-Waters Communication may cease until it is amended or supplemented; (ii) amend or supplement the Written Testing-the-Waters Communication to correct such statement or omission; and (iii) supply any amendment or supplement to the Representatives in such quantities as may be reasonably requested.
(ii) The Selling Stockholder agrees with the several Underwriters that:
(a) Prior to the Execution Time, the Selling Stockholder shall have furnished to the Representatives a letter substantially in the form of Exhibit A-1 hereto addressed to the Representatives.
(b) The Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) The Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Securities Act, of any change in information in the Registration Statement, the Disclosure Package or the Final Prospectus or any amendment or supplement thereto relating to such Selling Stockholder.
(d) The Selling Stockholder will deliver to each Underwriter (or its agent), on the date of the execution of this Agreement, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Selling Stockholder undertakes to provide such additional support documentation as each Underwriter may reasonably request in connection with the verification of the foregoing Certification.
(e) The Selling Stockholder will not, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person in any manner that will result in a violation of Sanctions by, or could result in the imposition of Sanctions against, any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(f) The 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.
(g) The Selling Stockholder will comply with the agreement contained in Section 5(i)(j).
(h) The Selling Stockholder will deliver to each Underwriter (or its agent), on, or before the Closing Date, a properly completed and duly executed IRS Form W-9.
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 SupplementFinal Prospectus) to the Base Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or 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 when (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 that would prevent 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 prevention 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 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 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 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.
(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 SupplementFinal Prospectus, 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 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 the imposition of any tax or 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 and its subsidiaries will promptly advise the Representatives of the receipt by the Company or any of its subsidiaries 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.
(ig) 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 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 (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.
(ih) The Except as contemplated hereby, 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 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, equity incentive 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 options 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 Final 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 Final 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 authorization for trading of the Securities on the Nasdaq National 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 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 Securities (each of such presentations referred to herein as a “roadshow”), provided, however, that for clarity (A) all expenses associated with the use of any private aircraft in connection with the roadshow from January 23, 2006 through February 1, 2006, inclusive, shall be borne equally by the Company, on the one hand, and the Underwriters, on the other hand and (B) all other costs and expenses associated with travel and transportation in connection with the roadshow from January 23, 2006 through February 1, 2006, inclusive, shall be borne solely and entirely by the party which incurred such costs and expenses; and (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 (but not including fees and expenses of counsel for the Underwriters, except as provided in clauses (vi) and (vii) above); and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
Appears in 1 contract
Agreements. The Each of the Company and the Parent agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, neither the Parent nor 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 or any Rule 462(b) Registration Statement unless either the Parent or 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 Parent 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 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 Parent and 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 of 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 Parent 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 initiation or threatening of any proceeding for such purpose. The Each of the Parent and 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 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, Parent and the Company promptly will (1) notify the Representatives of such event; (2i) 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 supplement, or, if appropriate, a filing under the Exchange Act, 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 Parent 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.
(fd) Upon request, The Parent and the Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed such number of 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 underwriter or a 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 Parent and the Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The Parent and 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, will arrange for the determination of the legality of the Securities for purchase by institutional investors 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 neither the Parent nor the Company will be obligated required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it file a consent to service of process in suits, other than those arising out of the offering or sale of the Securities any state in any jurisdiction where which it is not now so subjectqualified or for which consent has not been given.
(if) The Company agrees thatUntil the business date set forth on Schedule I hereto, unless it has obtained or obtains, as neither the case may be, the prior written consent of the Representatives, and (ii) each Underwriter, severally and not jointly, agrees with Parent nor 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 notwill, without the prior written consent of the Representatives, 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 could be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company Company, the Parent or any affiliate of the Company thereof or any person in privity with the Company Company, the Parent or any affiliate of the Companythereof) 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 or the Parent (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).
(jg) 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 shall apply the Exchange Act or otherwise, stabilization or manipulation net proceeds from the sale of the price of any security Securities as set forth in the Final Prospectus.
(h) Whether or not this Agreement is terminated or the sale of the Securities to the Underwriters is consummated, the Company and the Parent shall, jointly and severally, pay or cause to facilitate be paid (i) all fees and expenses (including, without limitation, all registration and filing fees and fees and expenses of the sale Company's or resale the Parent's accountants but excluding fees and expenses of counsel for the Underwriters) incurred in connection with the preparation, printing, filing, delivery and shipping of the Registration Statement (including the financial statements therein and all amendments and exhibits thereto), the Basic Prospectus, the Preliminary Final Prospectus, the Final Prospectus, the Indenture, the Statement of Eligibility and Qualification of the Trustee on Form T-1 filed with the Commission and any amendments or supplements of the foregoing and any documents incorporated by reference into any of the foregoing and the copying, delivery and shipping of this Agreement and Blue Sky Memoranda, (ii) all fees and expenses incurred in connection with the preparation and delivery to the Underwriters of the Securities (including the cost of printing the Securities), (iii) all filing fees and fees and disbursements of counsel to the Underwriters incurred in connection with the qualification of the Securities under state securities or Blue Sky laws, (iv) any fees required to be paid to rating agencies incurred in connection with the rating of the Securities, (v) the fees, costs and charges of the Trustee, including the fees and disbursements of counsel for the Trustee, and (vi) all other costs and expenses incident to the performance of its obligations hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section, Section 6 and Section 7 hereof, the Underwriters shall pay the fees of their counsel.
Appears in 1 contract
Samples: Underwriting Agreement (White Mountains Insurance Group LTD)
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 Underwriter that:
(a) Prior The Company will cause the Prospectus as supplemented by a Prospectus Supplement relating to the Certificates to be filed pursuant to Rule 424 under the Act and will promptly advise you when such Prospectus as so supplemented has been so filed, and 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 Certificate Offering to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final such 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 relates also will promptly advise the Representatives you (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 related Registration Statement specifically relating to such Certificates shall have become effective or any further supplement to such Prospectus has been filed or become effectivefiled, (3ii) of any request by the Commission or its staff for any amendment of the such Registration Statement, Statement or for any 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 such 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 written notification with respect to the suspension of the qualification of the Securities such Certificates for sale in any jurisdiction or the institution initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Prospectus (other than any amendment or supplement specifically relating to one or more Series of mortgage pass-through certificates other than the Series that includes the related Certificates or any Exchange Act filings other than Current Reports) unless the Company has furnished you and your counsel with a copy for your respective review prior to filing and you have consented to such filing. 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 cause any Computational Materials and any Structural Term Sheets (each as defined in Section 8 below) with respect to the Final Term Sheet and will file Certificates of a Series that are delivered by the Final Term Sheet Underwriter to the Company pursuant to Section 8 to be filed with the Commission on a Current Report on Form 8-K (each such filing of such materials, a "Current Report") pursuant to Rule 433(d13a-11 under the Exchange Act on the business day immediately following the later of (i) within the time required day on which such Computational Materials and Structural Term Sheets are delivered to counsel for the Company by the Underwriter, and (ii) the date on which this Agreement is executed and delivered. The Company will cause any Collateral Term Sheet (as defined in Section 9 below) with respect to the Certificates of a Series that is delivered by the Underwriter to the Company in accordance with the provisions of Section 9 to be filed with the Commission on a Current Report pursuant to Rule l3a-11 under the Exchange Act on the business day immediately following the day on which such RuleCollateral Term Sheet is delivered to counsel for the Company by the Underwriter. Each such Current Report shall be incorporated by reference in the related Prospectus and the related Registration Statement.
(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 Certificates of a Series 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 related 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 at any time to amend the Registration Statement, file a new registration statement or supplement the Final related 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) shall prepare and file with the Commission, subject to the second penultimate sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance; (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 to the Representatives Underwriter and counsel for the UnderwritersUnderwriter, without charge, as many signed copies of the related 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 the Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Act, as many copies of each Preliminary Prospectus Supplement, the Final Prospectus Supplement and each Issuer Free Writing related Prospectus and any amendment or supplement supplements thereto as the Representatives Underwriter 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 execute such instruments and take such actions as may be reasonably requested by you to qualify the qualification Certificates of the Securities a Series for sale under the laws of such jurisdictions as the Representatives Underwriter may designate, will to maintain such qualifications in effect so long as required for the distribution of such Certificates and to determine the Securities and will pay any fee legality of the Financial Industry Regulatory Authoritysuch Certificates for purchase by institutional investors; 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 on the date of the related Terms Agreement or to take any action that which would subject it to general or unlimited service of process in suitsany jurisdiction in which it is not, other than those arising out on the date of the offering or sale related Terms Agreement, subject to such service of the Securities in any jurisdiction where it is not now so subjectprocess.
(f) So long as the Certificates of a Series are outstanding, the Company will furnish to the Underwriter, upon request, copies of the annual independent public accountants' servicing report furnished to the Trustee pursuant to the relaxed Pooling and Servicing Agreement.
(g) Unless otherwise specified in the related Terms Agreement, the company will pay, and First Horizon Home Loan Corporation will cause the Company to pay, all expenses incident to the performance of the Company's obligations under this Agreement and the applicable Terms Agreement (other than the expenses of Deloitte & Touche LLP under Sections 8(c) and 9(c) hereof, the Underwriter's due diligence expenses, the Underwriter's counsel fees and the Underwriter's own expenses, which will be paid by the Underwriter), including and without limitation those related to: (i) The Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent filing of the RepresentativesRegistration Statement with respect to the Certificates and all amendments thereto, and (ii) each the printing or photocopying and delivery to the Underwriter, severally in such quantities as you may reasonably request, of copies of this Agreement and not jointlythe Terms Agreement, agrees with (iii) the Company thatpreparation, unless it has obtained or obtainsregistration, as issuance and delivery to the case may beUnderwriter of the Certificates, (iv) the prior written consent fees and disbursements of the Company's counsel and accountants, it has not made and will not make of any offer relating counsel rendering a closing opinion with respect to matters of local law, (v) the qualification of the Certificates under securities and Blue Sky laws and the determination of the eligibility of the Certificates for investment, including filing fees in connection therewith, (vi) the printing and delivery to the Securities that would constitute an Issuer Free Writing Underwriter, in such quantities as you may reasonably request, of copies of the Registration Statement with respect to the Certificates and all amendments thereto, of any preliminary prospectus and preliminary prospectus supplement and of the Prospectus and all amendments and supplements thereto and all documents incorporated therein (other than exhibits to any Current Report), and of any Blue Sky Survey and Legal Investment Survey, (vii) the printing or that would otherwise constitute a “free writing prospectus” photocopying and delivery to the Underwriter, in such quantities as you may reasonably request, of copies of the applicable Pooling and Servicing Agreement, (as defined in Rule 405viii) required to be filed the fees charged by investment rating agencies requested by the Company with to rate the Commission or retained by Certificates, (ix) 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 Prospectusesfees and expenses, if any, included incurred in Schedule III hereto. Any such free writing prospectus consented to by connection with the Representatives or listing of the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that Certificates on any national securities exchange, and (x) it has treated the fees 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 expenses 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 Trustee and ending on the Closing Dateits respective counsel.
(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 (First Horizon Asset Securities Inc)
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 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 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). 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. (a) The Company agrees with the several Underwriters Underwriter 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 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 the 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 Deutsche Bank Securities Inc. February 25, 2004 Page 6 prescribed and will provide evidence satisfactory to the Representatives Underwriter of such timely filing. The Company will promptly advise the Representatives Underwriter (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 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.
(dii) If, at any time prior to the expiration of twelve months from the date hereof 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)connection with the offering of the Securities, 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 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 Underwriter of any 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; 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.
(eiii) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Underwriter 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.
(fiv) Upon request, the The Company will furnish to the Representatives Underwriter and counsel for the UnderwritersUnderwriter, 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 Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(gv) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriter may reasonably designate, will maintain such qualifications in effect so long as required for the Deutsche Bank Securities Inc. February 25, 2004 Page 7 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.
(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.
(jvi) The Company 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 to facilitate the sale or resale of the Securities.
(b) Each Selling Stockholder agrees with the Underwriter that:
(i) Such Selling Stockholder will not, without the prior written consent of the Underwriter, offer, sell, contract to sell, announce any intention to sell, pledge or otherwise dispose of, directly or indirectly, or file (or participate in the filing of) with the Commission a registration statement under the Securities Act of 1933 relating to any shares of Common Stock or securities or other rights convertible into or exchangeable for any shares of Common Stock, enter into a transaction which would have the same effect, 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, whether any such aforementioned transaction is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement, for a period of 90 days after the date of this Underwriting Agreement.
(ii) Such Selling Stockholder will not take any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(iii) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement or the Prospectus relating to such Selling Stockholder.
(iv) Such Selling Stockholder will pay, or arrange the payment of, the following costs and expenses: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage and air freight charges) of such copies of the Registration Statement, the Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in Deutsche Bank Securities Inc. February 25, 2004 Page 8 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 sale of the Securities by the Selling Stockholders; (iv) the printing (or reproduction) and delivery of this Underwriting 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 and the listing of the Securities on the Nasdaq National Market; (vi) any registration or qualification of the Securities for offer and sale under the securities laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriter relating to such registration and qualification); (vii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees); (viii) the 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 under this Underwriting Agreement.
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 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 has obtained any Agent shall otherwise request, any Quarterly Report on Form 10-Q), or obtains(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 public accountants which have audited the financial statements of the Company and its subsidiaries included or incorporated 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 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.
(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 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 a final term sheet for the Final Term Sheet Securities, containing solely a description of final terms of the 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 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 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 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. 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 10 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.. 11
(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 12 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 Each of the Company and the Operating Partnership agrees with the several Underwriters Underwriters, the Forward Sellers and the Forward Purchasers that:
(a) Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement (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 to which the Representatives Representatives, the Forward Sellers and the Forward Purchasers do not reasonably object with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives Representatives, the Forward Sellers and the Forward Purchasers of such timely filing. The Company will promptly advise the Representatives Representatives, the Forward Sellers and the Forward Purchasers (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 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 or the Operating Partnership 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 Each of the Company and the Operating Partnership 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 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 Package, taken as a whole, 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, under which they were made not misleading, the Company will notify promptly the Representatives so that any use of Representatives, the Forward Sellers and the Forward Purchasers and will promptly amend or supplement in a manner reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Purchasers, at its own expense, the Disclosure Package may to eliminate or correct such untrue statement or omission and the Company shall cease to use the Disclosure Package until it is so amended or supplemented.
(dc) If, at any time when a prospectus relating to the Securities Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus 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 thereunderAct, including in connection with use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1i) notify the Representatives Representatives, the Forward Sellers and the Forward Purchasers of such event; , (2ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 56, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance; , (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, but in any event not later than eighteen months after the effective date of the Registration Statement, the Company will make generally available to its security holders and to the Representatives Representatives, the Forward Sellers and the Forward Purchasers 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, the Forward Sellers and the Forward Purchasers and counsel for the Underwriters, the Forward Sellers and the Forward Purchasers without charge, signed copies (which may be electronic 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.
(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 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 Neither the Company agrees thatnor the Operating Partnership will, unless it has obtained or obtains, as the case may be, without the prior written consent of the Representatives, and 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 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 under the Act (except for a registration statement on Form S-4 relating to an acquisition of a real property company or a registration statement on Form S-8 (including any amendments or supplements thereto) in connection with shares of Common Stock authorized for issuance pursuant to the terms of any plan in effect as of the date of the 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, any shares of Common Stock (other than the Shares), limited partnership units of the Operating Partnership, or any securities convertible into, or exercisable, or exchangeable for, any of the foregoing, or publicly announce an intention to effect any such transaction, until 60 days after the date of the Prospectus, provided, however, that the Company may (i) grant stock options, restricted stock, restricted stock units or long-term incentive Units (“LTIP Units”) to employees, consultants or directors pursuant to the terms of a plan in effect as of the date of the Prospectus, (ii) issue Common Stock pursuant to: (A) the exercise of such options, restricted stock units and LTIP Units; (B) the redemption of Units outstanding on the date of the Prospectus, including Units issued upon conversion of LTIP Units outstanding on the date of the Prospectus; provided, that the Company will notify the Representatives promptly in writing upon receipt by the Company or the Operating Partnership of any notice of redemption with respect to such Units (other than with respect to the redemption of LTIP Units) or (C) the exercise of any employee stock options outstanding as of the date of the Prospectus, (iii) issue Common Stock pursuant to the Company’s dividend reinvestment plan (if any), (iv) enter into and issue and deliver Common Stock pursuant to the Forward Sale Agreements, (v) issue (x) Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock in connection with other acquisitions of real property or real property companies and (y) Common Stock upon conversion or exchange of any securities issued pursuant to (v)(x) above, (vi) file shelf registration statements (including any amendments or supplements thereto) in connection with existing contractual commitments, and (vii) issue shares of Common Stock upon the conversion of any of the Company’s perpetual preferred stock pursuant to a delisting change of control transaction.
(h) Until and including the Closing Date or the latest Date of Delivery (whichever is later), the Company and the Operating Partnership will comply in all material respects with all applicable securities and other applicable laws, rules and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act, and will use its reasonable best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Xxxxxxxx-Xxxxx Act.
(i) Neither the Company nor the Operating Partnership will take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or sell, bid for, purchase or pay any person (other than as contemplated by this Agreement) any compensation for soliciting purchases of the Shares.
(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), the 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, the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement and the Forward Sale Agreements and any documents related hereto and thereto, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering, purchase, sale and delivery of the Shares; (v) the registration of any Company Shares and any shares issuable pursuant to the Forward Sale Agreements under the Exchange Act and the listing of the Shares on the NYSE; (vi) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified in Section 6(f) (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 the Company and the Operating Partnership in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses of the Company’s and the Operating Partnership’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Operating Partnership; and (x) all other costs and expenses incident to the performance by the Company and the Operating Partnership of their respective obligations under this Agreement and the Forward Sale Agreements.
(k) The Company will use the net proceeds from the sale of the Company Shares, if any, and the net proceeds, if any, due upon settlement of the Forward Sale Agreements, in each case, in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(l) Each of the Company and the Operating Partnership agrees that, unless it has or shall have obtained the prior written consent of the Representatives, the Forward Sellers and the Forward Purchasers, and each Underwriter, 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 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 hereto. Any such free writing prospectus consented to by the Representatives Representatives, the Forward Sellers and the Forward Purchasers or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Each of the Company and the Operating Partnership 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.
(im) The Company will notuse its best efforts to meet the requirements to qualify, without for the prior written consent of taxable year ending December 31, 2015, for taxation as a REIT under the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, Code.
(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 otherwiseo) by the Company or any affiliate Each of the Company or any person in privity with and the Operating Partnership will use its best efforts to ensure that 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 and its subsidiaries will not be an “investment company” within the meaning of Section 16 the Investment Company Act of 1940, as amended, and 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 rules and ending on the Closing Dateregulations thereunder.
(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 (Digital Realty Trust, L.P.)
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 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 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 either of 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 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 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 cooperate with 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 Mayex, Xxown & Platx, xxunsel for the Agents, 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 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 and to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or retained the filing of such supplement.
(j) 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 Notes, or (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), the Company under Rule 433, other than shall furnish or cause to be furnished promptly to each of you a free writing prospectus containing the information contained in the Final Term Sheet; provided that the prior written consent opinion of counsel of the parties hereto shall Company satisfactory to each of you, 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, counsel last furnishing such an opinion to you may furnish to 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 as amended and supplemented to the time of the Free Writing Prospectuseseffectiveness of such amendment or the filing of such supplement).
(k) Each time that the Registration Statement or the Prospectus is amended or supplemented to include or incorporate amended or supplemental financial information, the Company shall cause its independent public accountants promptly to furnish each of you a letter, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to each of you, of the same tenor as the letter referred to in Section 5(e) with such changes as may be necessary to reflect the amended and supplemental financial information included or incorporated by reference in the Registration Statement and the Prospectus, as amended or supplemented to the date of such letter; 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 limit the scope of such letter, which shall be satisfactory in form to each of you, to the unaudited financial statements, the related "Management's Discussion and Analysis of Financial Condition and Results of Operations" and any other information of an accounting, financial or statistical nature included in such amendment or supplement, unless, in the reasonable judgment of either of you, such letter should cover other information or changes in specified financial statement line items.
(l) During the period, if any, included specified (whether orally or in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or writing) in any Terms Agreement, 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 shall not, without the prior written consent of the RepresentativesPurchaser thereunder, 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 Notes being sold pursuant to effect any such transaction for a period commencing on the date hereof and ending on the Closing DateTerms Agreement).
(jm) 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 confirms as of the price of any security of date hereof, and each acceptance by the Company of an offer to facilitate purchase Notes will be deemed to be an affirmation, that the sale Company 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 the Company further agrees that if it commences engaging in business with the government of Cuba or resale with any person or affiliate located in Cuba after the date the Registration Statement becomes or has become effective with the Securities and Exchange Commission or with the Florida Department of Banking and Finance (the Securities"Department"), whichever date is later, or if the information reported in the 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 provide the Department notice of such business or change, as appropriate, in a form acceptable to the Department.
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 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 Underwriter that:
(a) Prior to the termination of the offering of the SecuritiesCommon Stock, 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 the Underwriter a copy for your the Underwriter’s review prior to filing and will not file any such proposed amendment or supplement to which you the Underwriter reasonably objectobjects. 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 Underwriter of such timely filing. The Company will promptly advise the Representatives Underwriter (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 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 any Rule 462(b) 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, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, (5) 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 (56) 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 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)Securities Act, any event occurs as a result of which the Final Pricing Disclosure Package (prior to availability of the Prospectus) or the Prospectus Supplement as then supplemented or amended would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in the light of the circumstances existing at the time of delivery of such Pricing Disclosure Package or Prospectus under which they were made made, not misleading, or if it shall be necessary to amend or supplement the Registration Statement, file a new registration statement the Pricing Disclosure Package 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 SupplementAct, the Company promptly will (1) notify the Representatives Underwriter 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 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 Underwriter in such quantities as you the Underwriter may reasonably request.
(c) The Company will not, without the prior written consent of the Underwriter, (i) make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act, except for any Issuer Free Writing Prospectus set forth in Annex II hereto and any electronic road show previously consented to by the Underwriter, or (ii) file, refer to, approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Securities Act with respect to the Offering or the Shares. If at any time any event shall have occurred as a result of which any Issuer Free Writing Prospectus as then amended or supplemented would, in the judgment of the Underwriter or the Company, conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus as then amended or supplemented or would, in the judgment of the Underwriter or the Company, include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances existing at the time of delivery to the purchaser, not misleading, or if to comply with the Securities Act or the Rules and Regulations it shall be necessary at any time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Underwriter promptly and, if requested by the Underwriter, prepare and furnish without charge to the Underwriter an appropriate amendment or supplement (in form and substance satisfactory to the Underwriter) that will correct such statement, omission or conflict or effect such compliance.
(d) The Company has complied and will comply with the requirements of Rule 433 with respect to each Issuer Free Writing Prospectus including, without limitation, all prospectus delivery, filing, record retention and legending requirements applicable to each such Issuer Free Writing Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Underwriter an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158158 under the Securities Act.
(f) Upon request, the The Company will furnish to the Representatives Underwriter and counsel for the UnderwritersUnderwriter, 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 the Underwriter or a 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 any Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringOffering.
(g) The Company will arrange, if necessary, for the qualification of the Securities Shares for sale under the laws of such jurisdictions as the Representatives Underwriter may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities Shares and will pay any fee of the Financial Industry Regulatory AuthorityNational Association of Securities Dealers, Inc., in connection with its review of the offeringOffering; 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 Offering or sale of the Securities Shares, in any jurisdiction where it is not now so subject.
(ih) The Company agrees that, unless it has obtained or obtains, as During the case may be, period of 90 days from the prior written consent date of the Representatives, and Prospectus (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 notLock Up Period”), without the prior written consent of the RepresentativesUnderwriter, the Company (i) will not, directly or indirectly, issue, offer, sell, contract agree to issue, offer or sell, solicit offers to purchase, grant any call option, warrant or other right to purchase, purchase any put option or other right to sell, pledge, borrow or otherwise dispose ofof any Relevant Security, or make any announcement of any of the foregoing, (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 otherwiseii) 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 will not establish or increase a any “put equivalent position position” or liquidate or decrease a any “call equivalent position position” (in each case within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder) with respect to any Relevant Security, and (iii) will not otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in respect ofwhole or in part, any debt securities issued economic consequence of ownership of a Relevant Security, whether or guaranteed not such transaction is to be settled by delivery of Relevant Securities, other securities, cash or other consideration; and the Company will obtain an undertaking in substantially the form of Annex I hereto of each of its officers and directors and its stockholders listed on Schedule II attached hereto not to engage in any of the aforementioned transactions on their own behalf, other than, in the case of each of the foregoing clauses, the sale of Shares as contemplated by this Agreement and the Company’s issuance of Common Stock upon (x) the exercise of currently outstanding options; and (y) the grant and exercise of options under, or the issuance and sale of shares pursuant to, employee stock option plans in effect on the date hereof, each as described in the Registration Statement and the Prospectus. The Company will not file a registration statement under the Securities Act in connection with any transaction by the Company or any person that is prohibited pursuant to the foregoing, except for registration statements on Form S-8 relating to employee benefit plans or Form S-4 relating to corporate reorganizations or other transactions under Rule 145. Notwithstanding the foregoing, if (other than 1) during the Securitieslast 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 (2) prior to the expiration of the Lock-Up Period the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed by the immediately preceding paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or publicly announce an intention to effect the occurrence of the material news or material event, as applicable, unless the Underwriter waives, in writing, such extension. The Company will provide the Lead Managers and any co-managers, each officer and director of the Company and each stockholder listed on Schedule II attached hereto with prior notice of any such transaction announcement that gives rise to an extension of the Lock-Up Period.
(i) The Company shall use its best efforts to have the Shares admitted and authorized for a period commencing listing on the date hereof New York Stock Exchange, and ending on satisfactory evidence of such admission and authorization for listing shall be provided to the Closing DateUnderwriter, if obtained.
(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 SecuritiesCommon Stock.
(k) The Company will apply the net proceeds from the sale of the Shares as set forth under the caption “Use of Proceeds” in the Pricing Prospectus.
(l) The Underwriter, severally and not jointly, covenants and agrees with the Company that the Underwriter will not use or refer to any “free writing prospectus” (as defined in Rule 405 under the Securities Act) without the prior written consent of the Company if the Underwriter’s use of or reference to such “free writing prospectus” would require the Company to file with the Commission any “issuer information” (as defined in Rule 433 under the Securities Act)
Appears in 1 contract
Samples: Underwriting Agreement (New York Community Bancorp 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 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 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 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 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 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 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 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.
(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 for transaction, until the Business Day set forth on Schedule I hereto, provided, however, that the Company may issue and sell Common Stock pursuant to any employee or director stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time. Notwithstanding the foregoing, if (x) during the last 17 days of such restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period commencing beginning on the date hereof and ending last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the 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 on Section 6(k) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(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; (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, 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 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.
(ii) Each Selling Stockholder agrees with the several Underwriters that:
(a) Such Selling Stockholder 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 Stockholder or any affiliate of the Selling Stockholder or any person in privity with the Selling Stockholder or any affiliate of the Selling Stockholder) directly or indirectly, or file (or participate in the filing of) a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any shares of Common Stock of the Company or any securities convertible into or exercisable or exchangeable for, shares of Common Stock; or publicly announce an intention to effect any such transaction, in each case until the Business Day set forth on Schedule I hereto, other than shares of Common Stock disposed of as bona fide gifts approved by Citigroup Global Markets Inc. Notwithstanding the foregoing, if (x) during the last 17 days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
(b) Such Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder 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 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 SupplementFinal Prospectus) to the Base Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or 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 (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 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 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 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.
(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, 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.
(if) The Company agrees thatwill pay the costs and expenses relating to the following matters: (i) the preparation, unless it has obtained printing or obtains, as reproduction and filing with the case may beCommission of the Registration Statement (including financial statements and exhibits thereto), the prior written consent of Preliminary Final Prospectus, the RepresentativesFinal 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, the Preliminary Final Prospectus, the Final Prospectus, and all amendments or supplements to any of them, as may, in each Underwritercase, severally and not jointly, agrees 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 of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the 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 that, unless it has obtained or obtains, as representatives in connection with presentations to prospective purchasers of the case may be, Securities; (ix) the prior written consent fees and expenses of the Company, it has not made ’s accountants and will not make any offer relating the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident 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 performance 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 keepingits obligations hereunder.
(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 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 transaction, until the date hereof and ending on the Closing DateBusiness Day set forth in Schedule I hereto.
(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.
Appears in 1 contract
Samples: Underwriting Agreement (Hillenbrand Industries 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 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) 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 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; (ix) the fees and expenses of the Trustee and the fees and expenses of its counsel; (x) any fees payable in connection with the rating of the Securities with the ratings agencies and (xi) 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 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. 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) Prior The Company will cause the Prospectus Supplement, in a form approved by the Representatives, to be filed pursuant to Rule 424(b) under the Act and will notify the Representatives promptly of such filing. During the period for which a prospectus relating to the termination Bonds is required to be delivered under the Act, the Company will promptly advise the Representatives (i) when any amendment to the Registration Statement shall have become effective, (ii) when any subsequent supplement to the Prospectus (including documents deemed to be incorporated by reference into the Prospectus) has been filed, (iii) of any request by the Commission for any amendment of or supplement to the Registration Statement or the Prospectus or for any additional information and (iv) of the offering issuance by the Commission of any stop order suspending the effectiveness of the SecuritiesRegistration Statement or the institution or threatening of any proceedings for that purpose. During the period for which a prospectus relating to the Bonds is required to be delivered under the Act, the Company will not file any amendment of the Registration Statement or supplement to the Prospectus (including documents deemed to be incorporated by reference into the Final Prospectus Supplement or any Preliminary Prospectus SupplementProspectus) to the Base Prospectus unless the Company has furnished you to the Representatives a copy for your 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 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 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 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 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 and regulations of the Final Prospectus SupplementCommission thereunder, the Company promptly will (1) notify the Representatives of such event; (2) prepare and file with the Commissionpromptly, subject to the second sentence of paragraph (a) of this Section 54, will prepare and file an amendment or supplement to the Prospectus with the Commission and furnish to the Underwriters a reasonable number of copies thereof, or new registration statement will make a filing with the Commission pursuant to Section 13 or 14 of the Exchange Act, which will correct such statement or omission or will effect such compliance; (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 an a consolidated 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(b) under the Act, as soon as is reasonably practicable after the end of such period, but in any event no later than eighteen months after the “effective date of the Registration Statement” (as defined in Rule 158(c) under the Act), which will satisfy the provisions provision of Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company, Rule 158).
(fd) Upon request, the The Company will furnish to each of 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 Form T -1 and all powers of attorney, consents and exhibits filed therewith (without other than exhibits theretoincorporated by reference), and will deliver to the Representatives conformed copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (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 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 execute such instruments and take such action as may be required to qualify the qualification of the Securities Bonds for sale under the laws of such jurisdictions 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 offeringBonds; 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.
(if) The Company agrees that, unless it has obtained or obtains, So long as the case may beBonds are outstanding, the prior written consent Company will furnish (or cause to be furnished) to each of the Representatives, upon request, copies of (i) all stockholder reports of the 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.
(ig) The During the period beginning from the date of this Agreement and continuing to the Closing Date, the Company will notnot 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 Representatives, offer, sell, contract which consent shall not be unreasonably withheld.
(h) The Company will obtain or make prior 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 issuance of the Company Bonds all regulatory and governmental approvals, consents, authorizations, orders, filings and registrations necessary for the issuance of the Bonds, including, without limitation, any required approvals, consents, authorizations, orders, filings and registrations of the MPUC or any person in privity with under PUHCA pertaining to the Company or any affiliate capital structure of the Company.
(i) directly or indirectly, including The Company will take such steps as shall be necessary to ensure that 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 Company shall not become an “investment company” within the meaning of Section 16 such term under the Investment Company Act of 1940 and the rules and regulations 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 DateCommission thereunder.
(j) In connection with the offering of the Bonds, until the Underwriters shall have notified the Company and the other Underwriters of the completion of the sale of the Bonds, the Company will not, and will use its best efforts to cause its controlled affiliates not to, either alone or with one or more other persons (i) bid for or purchase for any account in which it or any such affiliate has a beneficial interest any Bonds or attempt to induce any person to purchase any Bonds or (ii) make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Bonds.
(k) The Company will not take, directly or indirectly, any action which is designed to stabilize or that would constitute manipulate, or that which constitutes or which might reasonably be expected to cause or result in, under the Exchange Act or otherwise, in stabilization or manipulation manipulation, of the price of any security of the Company to facilitate in connection with the offering of the Bonds.
(l) The Company will use the proceeds from the sale or resale of the SecuritiesBonds for only the purposes described in the Prospectus and, without limiting the generality of the foregoing, will not use any such proceeds to make loans to any affiliate of the Company or for any purpose that would cause the issuance of the Bonds not to qualify for exemption under PUHCA Rule 52.
Appears in 1 contract
Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the SecuritiesShares, the Company will not file any amendment of the Registration Statement or supplement (including to the Final Prospectus Supplement or any Preliminary Prospectus SupplementRule 462(b) to Registration Statement (including, in each case, any amendment or supplement through incorporation of any report filed under the Base Prospectus Exchange Act) 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 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 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 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 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 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 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 Shares is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus 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 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.
(fe) Upon the Representative’s request, the Company will furnish to the Representatives and counsel for the UnderwritersRepresentative, 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 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 efforts to arrange, if necessary, for the qualification of the Securities Shares for sale (or obtain exemptions from the application of) 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 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.
(g) The Company will not, without the prior written consent of the Representative, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company), 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 Ordinary Shares or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreement or such earlier date that the Representative consents to in writing (the “Lock Up Period”), provided, however, that the Company may (i) effect the transactions contemplated hereby, (ii) issue Ordinary Shares, grant options to purchase Ordinary Shares, restricted stock, or restricted stock units or other equity awards pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Registration Statement, the Disclosure Package and the Prospectus, provided that such awards shall not become exercisable during the restricted period set forth in this Section 5(g), (iii) grant options, restricted shares or other awards to the Company’s directors, employees and consultants under the 2017 Omnibus Incentive Plan as described in the Prospectus, (iv) issue Ordinary Shares pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of options described in the Registration Statement, the Disclosure Package and the Prospectus, (v) file a registration statement on Form S-8 to register Ordinary Shares issuable pursuant to the terms of a stock option, stock bonus or other stock plan or arrangement described in the Registration Statement, the Disclosure Package and the Prospectus and (vi) issue Ordinary 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 (vi), (A) such Ordinary Shares shall not in the aggregate exceed 10% of the Company’s outstanding Ordinary Shares immediately following the consummation of the offering of the Shares contemplated by this Underwriting Agreement and (B) the recipient thereof provide to the Representative a signed letter substantially in the form of Exhibit A hereto. If any additional persons shall become directors or officers of the Company prior to the end of the 90 day restricted period referred to in this Section 5(g), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as a director or officer of the Company, to execute and deliver to the Representatives a signed letter substantially in the form of Exhibit A hereto.
(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 Shares.
(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), the Preliminary Prospectus, the Prospectus, 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, the Preliminary Prospectus, the Prospectus, and each Issuer Free Writing Prospectus and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Underwriting Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) any registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including filing fees); (vi) any filings required to be made with the FINRA (including filing fees); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares, provided that the Company and the Underwriters shall each be responsible for 50% of the cost of any 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 under the Underwriting Agreement. In addition, the Company shall reimburse the Representative for out-of-pocket expenses (including fees and expenses of its counsel and any other independent experts retained by the Representative) reasonably incurred by it in connection with the transactions contemplated hereby; provided that the Company shall not have any obligation to reimburse expenses exceeding $50,000 in the aggregate without the prior approval of the Company.
(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, which will not be unreasonably withheld, conditioned or delayed, 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 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 Issuer 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. The Company shall not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that such Underwriter otherwise would not have been required to file thereunder.
(ik) The Company will not, without notify promptly the Representative 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 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.
(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 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 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 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 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.
(jg) The Company will not takepay any fees of Moody's 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 x xxxxxion of the price of any security of McGraw Hill Companies, Inc., relating to the Company to facilitate the sale or resale ratings of the Securities.
(B) The several Underwriters agree with the Company that:
(a) The several Underwriters will pay 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 the fees and disbursements of KPMG LLP relating to the preparation of the letter required by Section 5(e) of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Estee Lauder Companies 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 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 (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 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 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 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, 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 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 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 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 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 (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 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 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 75 days (such 75-day period, the “Lock-Up Period”) after the date of this Agreement; 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 1 contract
Samples: Underwriting Agreement (Vanguard Natural Resources, LLC)
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 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 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, 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 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 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.
(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 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 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 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, (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 Units or any securities issued convertible into, or guaranteed by the Company (other than the Securities) exercisable, or exchangeable for, Common Units; or publicly announce an intention to effect any such transaction transaction, for a period commencing of 75 days (such 75-day period, the “Lock-Up Period”) after the date of this Agreement, provided, however, that the Company (A) may 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 (including the Company’s long-term incentive plan and Class B Unit plan) of the Company in effect at the Execution Time, (B) may issue and sell common units in a private transaction exempt from registration under the Act; provided, however, that any such purchasers must execute and deliver to the Representatives a lock-up letter agreement in the form of Exhibit A hereto, and (C) may 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) 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 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 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 1 contract
Samples: Underwriting Agreement (Vanguard Natural Resources, LLC)
Agreements. The Company Each of the Wachovia Parties jointly and severally agrees with the several Underwriters each Underwriter that:
(a) Prior The Registrants will cause the Prospectus to be filed, or transmitted for filing, with the Commission pursuant to Rule 424 under the Securities Act and will promptly advise the Representative when the Prospectus has been so filed or transmitted for filing, and, prior to the termination of the offering of the SecuritiesSecurities to which such Prospectus relates, also will promptly advise the Company will not file Representative (i) when any amendment to the Registration Statement has become effective or any supplement to the Prospectus has been so filed or transmitted for filing, (ii) of 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 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 purpose, and (5iv) of the receipt by Wachovia 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 initiation or threatening of any proceeding for such purpose. The Company Registrants will use its their 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 thereof. For so long as a prospectus relating to the Securities is required to be delivered under the Securities Act, the Registrants will not file or relief from such occurrence or objection, including, if necessary, by transmit for filing an any amendment to the Registration Statement or the Prospectus which relates to the Securities unless the Registrants have furnished you or counsel for the Underwriters a new registration statement and using its best efforts copy for your review prior to have such amendment filing or new registration statement declared effective as soon as practicabletransmission for filing.
(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)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 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 in connection with the sale of the Securities to comply with the Securities Act or the Exchange Act or rules and regulations of the respective rules Commission thereunder, including in connection with use or delivery of the Final Prospectus Supplementpromptly after becoming aware thereof, the Company promptly Registrants will (1) notify the Representatives of such event; (2) Representative or counsel for the Underwriters and, upon their or its reasonable request, prepare and file or transmit for filing with the Commission, subject to the second sentence of paragraph (a) of this Section 5, Commission an amendment or supplement or new registration statement which will correct such statement or omission or 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 practicableDuring the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, the Company Registrants will file or cause to be filed all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(d) The Registrants will make generally available to its their 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 fiscal quarter of the Registrants during which the filing, or transmission for filing, of the Prospectus pursuant to Rule 424 under the Act occurs (except not later than 90 days after the end of such period if such quarter is the last fiscal quarter), an earnings statement or statements (which need not be audited) of the Company each Registrant and its subsidiaries their respective subsidiaries, covering such 12-month period, which will satisfy the provisions of Section 11(a) and Rule 158 of the Act Securities Act.
(e) The Registrants will use their best efforts to furnish in New York City to each of the Underwriters prior to 10:00 a.m., New York City time, on the New York business day next succeeding the date of this Agreement and Rule 158from time to time, as many copies of the Prospectus, the Preliminary Prospectus and all amendments of such documents as may be reasonably requested.
(f) Upon request, the Company Holding will furnish pay all expenses incident 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 performance by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172)Wachovia Parties of their obligations under this Agreement, 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 preparing, printing or other production of reproduction and filing all documents relating to the offeringoffering and mailing and delivering such to Underwriters and dealers, any filing fee incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities, all expenses in connection with the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange, all expenses in connection with the qualification of the Securities for offering and sale under state securities laws (including the fees and disbursements of counsel to the Underwriters in connection with such qualification and the preparation of the Blue Sky and legal investment surveys), any taxes payable in connection with the sale and delivery of the Securities by Holding to the Underwriters, and any fees charged for rating the Securities.
(g) The Company Registrants will arrange, if necessary, use their reasonable best efforts to arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Representative may designate, will designate and 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 the Wachovia Parties shall the Company not be obligated required to qualify to do business in any jurisdiction where it is they are not now so qualified or to take any action that which would subject it them 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 they are 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 (Wachovia Preferred Funding 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 any 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, 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 the of any Registration Statement shall have been filed or become effective, (3iii) of any request by the Commission or its staff for any amendment of the any 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 any 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 purposerelating to the Notes in any jurisdiction. 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(dExcept as otherwise provided in subsection (n) 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 thereinthis Section 4, 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) 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 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 any 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; provided, however, that should any such event relate solely to activities of any Agent, then such Agent shall assume the expense of preparing and furnishing any such amendment or supplement. If such amendment or supplement, and any documents, certificates and opinions furnished to each of you pursuant to paragraph (g) of this Section 4 in connection with the preparation of filing of such amendment or supplement are satisfactory in all respects to you, you will, upon the filing of such amendment or supplement with the Commission and upon the effectiveness of an amendment to any Registration Statement, if such an amendment is required, resume your obligation to solicit offers to purchase Notes hereunder.
(ec) 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 and will inform each of you of such filing prior to or on the date of such filing. If so requested, the Company will furnish to any of you copies of such documents. 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 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 chargecharge (except as otherwise provided herein), signed copies of the each 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. .
(f) The Company will arrange for the determination of the legality of the Notes for purchase by institutional investors.
(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), as requested, 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 expenses 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 Registration Statement No. 333-18965, the Prospectus, all amendments thereof and supplements thereto, the Indenture, this Agreement and all other documents relating to the offering.
(g) The Company will arrange, if necessarythe cost of preparing, for printing, packaging and delivering the qualification Notes, the fees and disbursements, including fees of counsel, incurred in compliance with Section 4(f), the fees and disbursements of the Securities Indenture Trustee and the fees of any ratings agency that rates the Notes, (ii) reimburse each of you on a monthly basis for sale under all reasonable out-of-pocket expenses (including, but not limited to, advertising expenses), in the laws of such jurisdictions as the Representatives may designateaggregate not to exceed two thousand five hundred dollars per Agent, 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., incurred by you in connection with its review this Agreement and (iii) pay the reasonable fees and expenses of the offering; provided that your counsel 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 the offering or sale of the Securities in any jurisdiction where it is not now so subjectconnection with this Agreement.
(i) The Each acceptance by the Company agrees that, unless it has obtained or obtains, as the case may be, the prior written consent of an offer to purchase Notes will be deemed to be a reconfirmation to you of the Representativesrepresentations and warranties of the Company in Section 1 (except that such representations and warranties shall be deemed to relate solely to each 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, and each time that any 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) each Underwriter, severally and not jointly, agrees with a Pricing Supplement) 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 and will not make signed by any offer relating of the Chairman of the Board, the President, the Chief Executive Officer, any Vice President having responsibilities for financial matters, the Chief Accounting Officer 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 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 and to such Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or retained the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this Section 4, each time that any 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 under Rule 433shall furnish or cause to be furnished promptly to each of you a written opinion of John K. Keane, other than a free writing prospectus containing Jr., Xxx., xxxxxxx xxx xxx Xxxpany, satisfactory to each of you, dated the information contained in the Final Term Sheet; provided that the prior written consent date of the parties hereto shall 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 relte to such 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 have been given in respect relate to such Registration Statement and the Prospectus as amended and supplemented to the time of the Free Writing Prospectuseseffectiveness of such amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of this Section 4, each time that any 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, the Company shall cause its independent public accountants promptly to furnish each of you a letter, dated the date of the effectiveness of such amendment or the date of the filing of such supplement, in form satisfactory to each of you, of the same tenor as the letter referred to in Section 5(e) with such changes as may be necessary to reflect the amended and supplemental financial information included or incorporated by reference in such Registration Statement and the Prospectus, as amended or supplemented to the date of such letter.
(m) During the period, if any, included specified in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or any Terms Agreement, 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 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 the filing (Notes, with maturities or participation in other terms substantially similar to 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.
(jn) The Company will shall not takebe required to comply with the provisions of subsections (b), directly or indirectly(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; provided that, during any such period, any action designed Purchaser does not then hold any Notes purchased pursuant to a Terms Agreement. The Company shall be required to comply with the provisions of subsections (b), (j), (k) and (l) of this Section 4 prior to instructing the Agents to resume the solicitation of offers to purchase Notes or that would constitute or that might reasonably be expected prior to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securitiesentering into a Terms Agreement.
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, directly or indirectlydistributing and binding all documents relating to the offering.
(b) The several Underwriters will pay the reasonable fees and disbursements of outside counsel for the Company, any action designed the Underwriter and the Trustee relating 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 offering.
(c) The several Underwriters will pay the registration fees of the price of any security of Securities and Exchange Commission or other governmental agency which are associated with the Company to facilitate the sale or resale issuance of the Securities.
(d) The several underwriters will pay the pro-rata share of the Company's annual fees, as determined by the Company, relating to the rating of the Securities, which fees are billed by Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx Companies, Inc.
(e) 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.
(f) the several Underwriters will pay the reasonable fees and expenses of The Chase Manhattan Bank, as Trustee.
(g) The several Underwriters will pay any and all fees associated with listing the Securities on any United States or foreign securities exchange.
(h) The several Underwriters will pay for any and all travel expenses, road shows, and other expenses incurred by the Company or its counsel in connection with the marketing of the Securities, including without limitation, tombstone advertisements, lucite or other mementos, and any other miscellaneous expenditures reasonably determined by the Company to be appropriate in connection with the offering of the Securities.
Appears in 1 contract
Samples: Underwriting Agreement (International Business Machines Corp)
Agreements. The Company agrees with the several Underwriters Placement Agents that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (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 to you, as Representative, 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 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 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 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 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 III hereto and will file the Final Term Sheet such term sheet pursuant to Rule 433(d) within the time required require by such Rulerule.
(cb) 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 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 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 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; , (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 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 UnderwritersPlacement Agents, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter Placement Agent a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter a Placement Agent 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 any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, the Registration Statement and documents ancillary thereto relating to the offering.
(gf) The Company will use its commercially reasonable efforts to arrange, if necessary, for the qualification of the Securities (including the Warrant Shares) 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 reasonably 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 qualified, to subject itself to taxation in respect of doing business in any jurisdiction where it is not now otherwise 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 agrees that, unless it has or shall have obtained or obtains, as the case may be, the prior written consent of the Representatives, Representative and (ii) each Underwriter, Placement Agent severally and not jointly, 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 specified in Section 4(a) 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 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.
(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, (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, until the Business Day set forth on Schedule I hereto, provided, however, that the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time and the Company may issue up to 50,000 shares, in the aggregate, of Common Stock or any securities convertible into, or exercisable or exchangeable for, shares of Common Stock to consultants in exchange for services rendered, to suppliers of goods and services as compensation therefor and to owners and providers of intellectual property reasonably related to the Company’s business. Notwithstanding the foregoing, if issuer-specific research reports about the Company are not permitted to be published or distributed pursuant to Rule 139, then, if (x) during the last 17 days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or (y) prior to the expiration of the restricted period, the Company announces that it will release earnings results during the 16-day period commencing beginning on the date hereof and ending last day of the restricted period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the Closing Dateissuance of the earnings release or the occurrence of the material news or material event. The Company will provide the Representative and each individual subject to the restricted period pursuant to the lockup letters described in Section 5(k) with prior notice of any such announcement that gives rise to an extension of the restricted period.
(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 (as such terms are used in Regulation M) 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 (including the Warrant Shares); (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities (including the Warrant Shares), including any stamp or transfer taxes in connection with the original issuance and sale of the Securities (including the Warrant Shares); (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities (including the Warrant Shares); (v) the registration of the Securities (including the Warrant Shares) under the Exchange Act and the listing of the Shares and the Warrant Shares on the Nasdaq Global Market; (vi) any registration or qualification of the Securities (including the Warrant 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 Placement Agents relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Placement Agents 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; (x) the fees and expenses of counsel for the Placement Agents, in an aggregate amount not to exceed $75,000.00; and (xi) 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 Underwriter 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 the Preliminary Prospectus SupplementProspectus) to the Base Basic Prospectus unless the Company has furnished you the Underwriter a copy for your its review prior to filing and will not file any such proposed amendment or supplement to which you the Underwriter reasonably objectobjects. Subject to the foregoing sentence, the The Company will cause the Final Preliminary Prospectus Supplementand the Prospectus, 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 Underwriter of such timely filing. The Company will promptly advise the Representatives Underwriter (1) when the Final Preliminary Prospectus Supplementand the Prospectus, 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 to 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 that would prevent 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 prevention 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 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 promptly notify promptly the Representatives Underwriter 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 Disclosure Package, if prior to the availability of the Prospectus, or the 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 delivery or use or delivery of the Final Prospectus SupplementProspectus, the Company promptly will (1) notify the Representatives Underwriter of any such event; , (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement 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 the Underwriter in such quantities as you the Underwriter may reasonably requestrequest in writing; provided that in case the Underwriter is required to deliver a Prospectus in connection with sales of any of the Securities at any time nine months or more after the Execution Time, any preparation and delivery of any amended or supplemented Prospectus shall be at the expense of the Underwriter.
(ed) As soon as practicable, the Company will make generally available to its security holders and to the Representatives Underwriter 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 (it being understood that such delivery requirements shall be deemed to have been satisfied by the Company’s compliance with the reporting requirements pursuant to the Exchange Act).
(fe) Upon request, the The Company will furnish to the Representatives Underwriter and counsel for the Underwriters, without charge, Underwriter four 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 the Underwriter or any 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 the Preliminary Prospectus SupplementProspectus, the Final Prospectus Supplement and each Issuer Free Writing Prospectus and any amendment or supplement thereto as the Representatives Underwriter may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offeringrequest in writing.
(gf) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives Underwriter may designate, reasonably designate in writing 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 be, obtains the prior written consent of the RepresentativesUnderwriter, and (ii) each Underwriter, severally and not jointly, the Underwriter 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 ProspectusesProspectuses included in Schedule II hereto, if any, included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives Underwriter 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 RepresentativesUnderwriter, 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 on of 45 days after the date hereof of this Agreement, provided, however, that the Company and ending on Endo Pharma LLC may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment plan of the Closing DateCompany or Endo Pharma LLC 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.
(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 stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities in violation of the Exchange Act.
(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), the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or other Free Writing Prospectus that is included in the Disclosure Package, if any, 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, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or other Free Writing Prospectus that is included in the Disclosure Package, if any, 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 National 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 Underwriter relating to such registration and qualification); (vii) any filings required to be made with the National Association of Securities Dealers, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriter 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 (as among the Selling Stockholders, as may be determined by Endo Pharma LLC); and (x) all other costs and expenses incident to the performance by the Company and the Selling Stockholders of their obligations hereunder (as among the Selling Stockholders, as may be determined by Endo Pharma LLC).
(ii) Each Selling Stockholder, severally and not jointly, agrees with the Underwriter that:
(a) Such Selling Stockholder will not, without the prior written consent of the Underwriter 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 undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange 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 Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of 45 days after the date of the Underwriting Agreement, other than Securities to be sold by such Selling Stockholder hereunder; subject to the limited exceptions described in the lock-up letter to be executed by such Selling Stockholder.
(b) Such Selling Stockholder will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if requested by you, will confirm such advice in writing, so as long as delivery of a prospectus relating to the Securities by an underwriter or dealer may be required under the Act, of any change in information in the Registration Statement, the Disclosure Package, the Preliminary Prospectus or the Prospectus relating to such Selling Stockholder.
Appears in 1 contract
Samples: Underwriting Agreement (Endo Pharmaceuticals Holdings Inc)
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 $4,800,000 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. 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 Representatives for their 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 (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 Representatives for their 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 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 Company will furnish to the Representatives 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 may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(ge) The To the extent required, 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 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.
(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 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.
(jg) 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 (Tribune 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 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 (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 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 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 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 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 RepresentativesSVB 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 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 Underwritten 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 Shares and the Warrant Shares 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 $15,000); (viii) fees and expenses of the transfer agent for the Securities (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), including, without limitation, fees and expenses pursuant to the Warrant Agency Agreement; 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
Samples: Underwriting Agreement (Calithera Biosciences, Inc.)
