Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities: (a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement. (b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5. (d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement. (e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested. (f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. (g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request. (h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters. (i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Agents that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives each Agent promptly of any proposal to amend or supplement the Prospectus or the Registration Statement or to register the Prospectus and will afford Securities under any registration statements other than the Representatives a reasonable opportunity Registration Statement referred to comment on in Section 2(a) above (other than any such proposed proposal for an amendment or supplement; supplement or additional registration statement that relates only to the offering and sale of securities other than the Securities or the offering and sale of Securities other than through such Agent). The Company will also advise the Representatives each Agent promptly of the filing with the Commission of any such each amendment or supplement to the Prospectus or the Registration Statement and each such additional registration statement (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than the Securities or the offering and sale of Securities other than through such Agent) and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof such additional registration statement, and will use its best efforts to prevent the issuance of any such stop order and and, if such a stop order is issued, to obtain its lifting as soon as possible its lifting, if issuedpossible.
(cb) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs shall occur as a result of which the Prospectus as then amended or supplemented would shall include an untrue statement of a material fact 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 is shall be necessary at any time to amend or supplement the Registration Statement or the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.comply
Appears in 1 contract
Samples: Master Agency Agreement (Chase Manhattan Corp /De/)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or the Prospectus any Supplemental Marketing Material and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement without the Representative’s consent, such consent not to be unreasonably withheld. The Company will timely file all reports required to be filed by the Company pursuant to Section 13(a), 13(c) and 15(d) of the institution Exchange Act for so long as deliveries of an offering circular are being made by the Commission of any stop order proceedings Purchasers in respect connection with the offering or sale of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Notes. If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of the Notes by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and promptly will prepare and file with furnish, at its own expense, to the Commission Purchasers and the dealers and to any other dealers at the request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' Representative’s consent to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Representative copies of the Registration StatementPreliminary Offering Circular, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementeach other document comprising a part of the General Disclosure Package, the Prospectus and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Securities Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; providedresale of the Notes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited liability company or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation take any action that would subject itself to taxation based on income or revenues in any such jurisdiction in which where it is not so qualifiedcurrently subject to taxation.
(gd) During the period of five years one year after the date of any Terms AgreementClosing Date, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anyPurchasers, as soon as practicable after the end of each fiscal year, a copy of its the Company’s annual report to stockholders for such year; and the Company will furnish to the Representatives (i) Representative and, upon request, to each of the other Purchasers as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholdersunitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, it is not required to furnish such reports or statements to the Purchasers.
(e) During the period of one year after the Closing Date, the Company will, upon reasonable request, furnish to the Representative, each of the other Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(f) During the period of one year after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them. Neither the Company nor any affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of (i) the sale of the Notes by the Company to the Purchasers, (ii) from time the resale of the Notes by the Purchasers to timeany subsequent purchasers or (iii) the resale of the Notes by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, such other information concerning the Company as will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Representatives may reasonably requestInvestment Company Act.
(h) None of the Company, its affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company makes no representation) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Notes, and the Company and its affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incident incidental to the performance of its respective obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters for Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Common Security Trustee and any transfer agent, registrar or depositary and their professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counselcounsel to the Purchasers) incurred by them in connection with qualification of the Registered Securities Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate Representative designates and the preparation and printing of memoranda relating thereto, for ; (vi) any fees charged by investment rating agencies for the rating of the Securities Notes; (vii) all fees, disbursements and for expenses of the Independent Engineer who has prepared reports in connection with the transactions contemplated by this Agreement; (viii) expenses incurred in distributing the ProspectusPreliminary Offering Circular, any preliminary prospectuses other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any preliminary prospectus supplements Supplemental Marketing Material to Underwritersthe Purchasers; (ix) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (x) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes.
(ik) For a period beginning at The Company will use the time of execution net proceeds received in connection with the offering of the Terms Agreement Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representative shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes; and ending one business day after neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(m) Until the Closing Date, the Company will not, without the prior consent directly or indirectly, take any of the Representatives, offer, sell, contract following actions with respect to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) 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; (iv) 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 (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement or the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of RBC Capital Markets, LLC. The Company will not at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the --------------------------------- several Underwriters that it that:
(1) so long as any Note or Certificate is outstanding, the Company will furnish to Kirkxxxx & Xllixthe Representative by telecopier, xxunsel for the Underwritersovernight carrier service or first-class mail as soon as practicable, one conformed copy (i) all documents distributed, or caused to be distributed, by or on behalf of the Registration StatementCompany or the Trust to Noteholders or the Certificateholders (ii) all documents filed, including all exhibitsor caused to be filed, in by or on behalf of the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file or the Prospectus Trust with the Commission pursuant to the 1934 Act, (iii) copies of any order or other communication received from the Commission with respect to the Company, the Notes or the Certificates and (iv) such other information in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery possession of the Terms AgreementCompany concerning the Trust or the Company as the Representative from time to time may reasonably request.
(b2) except as otherwise specified in this Agreement, the Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses reasonably incurred by them in connection with qualification of the Notes or the Certificates and determination of their eligibility for investment under the laws of such jurisdictions as the Representative may designate and the reproduction of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of such Notes or the Certificates, for all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Representative and, to the extent previously agreed upon with the Representative, for reasonable expenses incurred in distributing the Prospectus (including any amendments and supplements thereto) to the Underwriters and the reasonable fees and disbursements of the Underwriter's counsel;
(3) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Prospectus, and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Representative's consent; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon son as possible its lifting, if issued.
(c4) If, at any time when a the prospectus relating to the Securities Notes or the Certificates is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission (subject to the Representative's prior review), at its own expense, an amendment or supplement which will correct such statement or omission omission, or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e5) The Company company will furnish to the Representatives Representative copies of the Registration Statement, including Statement (two of which will be signed and will include all exhibits), any each related preliminary prospectus, and, so long as delivery of a prospectus relating to the Certificates or the Notes is required to be delivered under the Act in connection with sales by any related preliminary prospectus supplementUnderwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Representative requests. (The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement.) All other such documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f6) The Company will arrange for the qualification of the Securities Notes for offering and sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Representation designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that distribution of the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedNotes.
(g7) During the For a period of five years after from the date of any Terms Agreement, this Agreement until the retirement of the Notes (i) the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end copies of each fiscal year, a copy of its annual report to stockholders for such year; certificate and the Company will furnish annual statements of compliance delivered to the Representatives (i) as soon as available, a copy of each report on Form 10-K Indenture Trustee or 10-Q or definitive proxy statement the Insurer pursuant to Section 3.9 of the Company filed with Indenture and Sections 3.9 and 3.10 of the Commission under Sale and Servicing Agreement and the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident annual independent certified public accountant's servicing reports furnished to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including Indenture Trustee pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.to
Appears in 1 contract
Samples: Underwriting Agreement (Carmax Auto Receivables LLC)
Certain Agreements of the Company. The Company agrees with the several Underwriters each Underwriter that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statement, including copies of all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesCSFBC, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The At any time when a Prospectus is required to be delivered under the Act in connection with sales by any Underwriter or any dealer, the Company will advise the Representatives CSFBC promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives CSFBC a reasonable opportunity to comment on any such proposed amendment or supplement; and at any time when a Prospectus is required to be delivered under the Act in connection with sales by any Underwriter or any dealer, the Company will also advise the Representatives CSFBC promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Prospectus is required to be delivered under the ActAct in connection with sales by any Underwriter or any dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify CSFBC of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment or supplement which will effect such compliance. Neither the Representatives' CSFBC's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Underwriters copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus or prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are CSFBC reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate CSFBC designates and will continue such qualifications in effect so long as required for completion of the distribution; provideddistribution of the Offered Securities, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any such state or subject itself to qualify as a foreign corporation taxation in any jurisdiction in which where it is not now so qualifiedsubject.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate CSFBC designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary or prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day 60 days after the Closing Datedate hereof, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly sold disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFBC, except for (including 1) issuances of Securities pursuant to Rule 144A the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof or (2) grants of employee stock options or securities pursuant to the terms of a plan in effect on the date hereof.
(i) The Company will apply the net proceeds to the Company of the offering and the sale of the Offered Securities Act) United States dollar-denominated debt securities issued or guaranteed by in the Company and having a maturity manner set forth in the Prospectus under the caption "Use of more than one year from the date of issueProceeds."
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that should the Registration Statement be unavailable for free on XXXXX on the SEC website it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, Underwriters one conformed signed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of the Offered Securities:
(a) The Company will file the Final Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2424(b) (or, if applicable and if consented to by of the Representatives, Rule 424(b)(5)) Act not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Base Prospectus at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172) in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the ActAct or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Final Prospectus, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance, and supply any amended or supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order If, at any time prior to comply with the provisions of Section 11(a) filing of the ActFinal Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, the Company will, will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and supply any amendment or supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date Effective Date of the Registration StatementStatement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(ef) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Final Prospectus and each Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(fg) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedjurisdiction.
(gh) The Company will prepare a final term sheet, containing solely a description of the Offered Securities, in a form approved by the Representatives (the “Final Term Sheet”) and will file the Final Term Sheet pursuant to Rule 433(d) under the Act within the time required by such rule. The Final Term Sheet shall constitute an Issuer Free Writing Prospectus hereunder.
(i) The Company represents and agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, represents and 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 Offered Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a Free Writing Prospectus required to be filed by the Company with the Commission, other than 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 included in Schedule B hereto (if any). Any Issuer 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 it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (y) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Act) that was not included (including through incorporation by reference) in the Final Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule B, or (iii) information describing the preliminary terms of the Offered Securities or their offering or information that describes the final terms of the Offered Securities or their offering and that is included in the Final Term Sheet.
(j) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hk) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Disclosure Package and the Final Prospectus, any preliminary prospectuses and prospectus, any preliminary prospectus supplement or any other amendments or supplements to the Disclosure Package and the Final Prospectus to the Underwriters.
(il) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix_________________________, xxunsel special counsel for the UnderwritersUnderwriters (or any other counsel named as counsel for the Underwriters in any Terms Agreement), one conformed signed copy of the Registration StatementStatement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(cb) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(dc) In order As soon as practicable, the Company will make generally available to comply with 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, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(ed) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(fe) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(gf) During the period of five 5 years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act")amended, or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hg) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day 10 days after the Closing Date, the Company will not, without the prior consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Underwriting Agreement (Diamond Offshore Drilling Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with subparagraph (2) of Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms this Agreement) (or, if applicable, subparagraph (5)). The Company will advise CSFB promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives CSFB promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without CSFB’s consent (such consent not to be unreasonably withheld); and the Company will also advise the Representatives CSFB promptly of the filing effectiveness of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement Statement, as it may be amended or of any part thereof supplemented, and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify CSFB of such event and will promptly prepare and file with the Commission Commission, at the Company’s own expense, an amendment or supplement which that will correct such statement or omission or an amendment which that will effect such compliance. Neither the Representatives' CSFB’s consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later Effective Date that will satisfy the provisions of (iSection 11(a) the effective date of the Registration Statement, (ii) Act. For the effective date purpose of the most recent post-effective amendment to preceding sentence, “Availability Date” means the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 45th day after the end of each the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, a copy of its annual report to stockholders for such year; and “Availability Date” means the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business 90th day after the Closing Date, the Company will not, without the prior consent end of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issuesuch fourth fiscal quarter.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, if available, one conformed signed copy of the Registration StatementStatement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Statutory Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exception in Rule 172 would be) required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representatives consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof. If, prior to the Closing Date, there occurs an event or development as a result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the General Disclosure Package is delivered to a purchaser, not misleading, the Company promptly will notify the Representatives, and will promptly prepare an amendment or supplement that will correct such statement or omission.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies one copy each of the Registration Statement, including all exhibits, any Statutory Prospectus, one copy each of any related preliminary prospectus, if available, one copy of each Issuer Free Writing Prospectus and copies of any related preliminary prospectus supplementsupplement related to the Offered Securities, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions of the United States as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms this Agreement, the Company will furnish or otherwise make available to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish or otherwise make available to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for Agreement, including but not limited to any filing fees or other expenses (including reasonable legal fees and disbursements of counsel) incurred by them in connection with qualification or exemption of the Registered Offered Securities for sale under the securities and real estate syndication laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any applicable filing fee and expense incident to, any review by the Financial Industry Regulatory Authority, for all expenses incident to the registration of the Offered Securities and the printing and the word processing of copies of the Registration Statement, any prospectus and this Agreement, for the fees and expenses of the Trustee, including if required the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Offered Securities, for the fees and expenses of any depositary in connection with holding the Offered Securities in book-entry form, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectus supplements, any preliminary prospectus Issuer Free Writing Prospectus or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) of, directly or indirectly, United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueissue without the prior written consent of the Representatives for a period beginning at the time of execution of this Agreement and ending on the 30th day following such 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 Offered Securities.
(k) The Company will use the net proceeds received by it from the sale of the Offered Securities sold by it in the manner specified in the Prospectus under “Use of Proceeds”.
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Initial Purchasers that, in connection with each offering of Securities:
(a) The Prior to the later of (i) termination of the offering of the Securities as determined by the Representatives and as evidenced by written notice thereof to the Company from the Representatives or (ii) the Closing Date, the Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2not (x) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Final Offering Memorandum and (y) will not use any other written materials to solicit offers in the Prospectus and will afford offering, unless, in each case, the Company has furnished the Representatives a reasonable opportunity copy for the Representatives’ review and, in the case of (y), the Representatives have consented to comment on any the use of such proposed amendment or supplement; materials. For the avoidance of doubt, the Company and the Company will also advise the Representatives promptly Initial Purchasers hereby agree that, for purposes of the filing of foregoing provision, any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is all documents required to be delivered under filed by the ActCompany pursuant to the Exchange Act shall not be considered “written documents to solicit offers in the offering.”
(i) If prior to the completion of the placement of the Securities by the Initial Purchasers with the Subsequent Purchasers, notice of which shall be given to the Company by the Initial Purchasers, if occurring after the Closing Date, any event occurs as a result of which the Prospectus Final Offering Memorandum as then amended or supplemented would include an any untrue statement of a material fact 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 is shall be necessary at any time to amend or supplement the Prospectus to comply with the ActFinal Offering Memorandum, the Company will promptly will notify the Initial Purchasers thereof and promptly prepare and file with the Commission an amendment or supplement which will correct such statement or omission, and (ii) if at any time prior to the Closing Date, any event occurs as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company will promptly notify the Initial Purchasers thereof and promptly prepare and furnish to the Initial Purchasers and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information which will correct such statement or omission or an amendment which will effect such compliance. Neither .
(c) Following the Representatives' consent consummation of the Exchange Offer or the effectiveness of an applicable shelf registration statement and for so long as the Securities are outstanding if, in the judgment of the Initial Purchasers, the Initial Purchasers or any of their affiliates (as such term is defined in the Act) are required to deliver a prospectus in connection with sales of, or market-making activities with respect to, nor the Underwriters' delivery ofSecurities, to periodically amend the applicable registration statement so that the information contained therein complies with the requirements of Section 10 of the Act, to amend the applicable registration statement or supplement the related prospectus or the documents incorporated therein when necessary to reflect any such material changes in the information provided therein so that the registration statement and the prospectus will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing as of the date the prospectus is so delivered, not misleading and to provide the Initial Purchasers with copies of each amendment or supplement shall constitute a waiver filed and such other documents as the Initial Purchasers may reasonably request. The Company hereby expressly acknowledges that the indemnification and contribution provisions of any of the conditions set forth Sections 8 and 9 hereof are specifically applicable and relate to each offering memorandum, registration statement, prospectus, amendment or supplement referred to in this Section 54.
(d) In order The Company shall cooperate with the Initial Purchasers and counsel for the Initial Purchasers to qualify or register (or to obtain exemptions from qualifying or registering) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or any other jurisdictions designated by the Initial Purchasers, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the provisions of Section 11(a) distribution of the ActSecurities. The Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Initial Purchasers promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company will, as soon as practicable, but not later than 16 months, after shall use its best efforts to obtain the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of withdrawal thereof at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreementearliest possible moment.
(e) The Company will furnish to the Representatives and counsel for the Initial Purchasers, without charge, copies of the Registration Statement, Time of Sale Information (including all exhibits, exhibits thereto) and each amendment thereto and as many copies of the Final Offering Memorandum and any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments thereof and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company thereto as the Representatives may reasonably request.
(h) . The Company will pay the expenses of printing all expenses incident documents relating to the performance of its obligations under this Agreement and will reimburse offering unless otherwise agreed with the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to UnderwritersRepresentatives.
(if) For a period beginning at Until the time of execution of the Terms Agreement and ending one business day after Business Day following the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell sell, or otherwise dispose of any publicly sold (including pursuant to Rule 144A debt securities of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of which mature more than one year following the Closing Date and which are substantially similar to the Securities.
(g) The Company will not, and will cause its affiliates not to, make any offer or sale of securities of the Company of any class if, as a result of the doctrine of “integration” referred to in Rule 502, such offer or sale would render invalid (for the purpose of (i) the sale of the Securities by the Company to the Initial Purchasers, (ii) the resale of the Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the resale of the Securities by such Subsequent Purchasers to others) the exemption from the date registration requirements of issuethe Act provided by Section 4(2) thereof or by Rule 144A or by Regulation S thereunder or otherwise.
(h) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Act (“Rule 144”)) to, resell any of the Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any of them.
(i) Each certificate for a Security will bear the applicable legend contained in “Notice to investors” in the Preliminary Offering Memorandum for the time period and upon the other terms stated in the Preliminary Offering Memorandum.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the UnderwritersUnderwriters ("Underwriter's Counsel"), one conformed copy of the Registration Statementregistration statements relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During the time when a prospectus relating to the Securities is required to be delivered under the Act, (i) the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; supplement and (ii) the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order The Company will make generally available to comply with the provisions of Section 11(a) of the Act, the Company will, its security holders as soon as practicable, but in any event not later than 16 months, eighteen months after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Act), (ii) the effective date an earnings statement of the most recent post-effective amendment to Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Registration Statement to become effective prior to Act and the date of such Terms Agreement Rules and Regulations (iii) including, at the date of filing with the Commission option of the Company's most recent Annual Report on Form 10-K prior to , Rule 158 under the date of such Terms AgreementAct).
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, supplement and the Prospectus and and, during the time when a prospectus relating to the Securities is required to be delivered under the Act, all amendments and supplements to such documentsdocuments (other than those solely relating to securities other than the Securities), in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in no event shall the Company shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as a dealer in securities or to file a general or unlimited consent for service of process in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During The Company will pay or cause to be paid the period following: (i) the fees, disbursements and expenses of five years after the date Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus supplement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing any Agreement among Underwriters, this Agreement, any Terms Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the Company will furnish to the Representatives andoffering, upon requestpurchase, to each sale and delivery of the other UnderwritersSecurities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 4(f), if anyincluding the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, as soon as practicable after Inc. of the end terms of each fiscal year, a copy the sale of its annual report to stockholders the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for such yearany Trustee in connection with any Indenture and the Securities; and the Company will furnish to the Representatives (iviii) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, all other costs and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations hereunder and under any Delayed Delivery Contracts which are not otherwise specifically provided for in this Agreement Section; provided, however, that, except as provided in this Section, Section 6 and will reimburse Section 8 hereof, the Underwriters for will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectusby them, any preliminary prospectuses and any preliminary prospectus supplements to Underwritersadvertising expenses connected with any offers they may make.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the earlier of (i) the termination of trading restrictions for the Securities, as notified to the Company by the Representatives, and (ii) the Closing Date, the Company will not, without the prior consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant securities substantially similar to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueSecurities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus Prospectus, properly completed, with the Commission pursuant to and in accordance with Rule 424(b)(2subparagraph (2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not of Rule 424(b) no later than the second business day following the execution and delivery date it is first used. The Company will advise the Representative promptly of the Terms Agreementany such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly Representative promptly, in writing, of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Representative's reasonable consent; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, made not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission (subject to the Representative's prior review pursuant to Section 5(b)), at its own expense, an amendment or supplement which will correct such statement or omission omission, or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' Underwriters delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order The Company will cause the Trust to comply with the provisions of Section 11(a) of the Act, the Company willmake generally available to Noteholders, as soon as practicable, but not no later than 16 months, sixteen months after the date of each Terms Agreementhereof, make generally available to its securityholders an earnings statement of the Trust covering a period of at least 12 twelve consecutive months beginning after the later of (i) the effective date of the Registration Statement, registration statement relating to the Notes and (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iiiand, in each case, satisfying the provisions of Section 11(a) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementAct (including Rule 158 promulgated thereunder).
(e) The Company will furnish to the Representatives Underwriters copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementthe Prospectus, the Prospectus Registration Statement and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Prospectus shall be furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other such documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities Notes for offering and sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall Representative may reasonably designate and will continue such qualifications in effect so long as required for the distributiondistribution of the Notes; provided, however, PROVIDED that in connection therewith the Company shall not be obligated required to qualify as a foreign corporation to do business or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During the For a period of five years after from the date of any Terms Agreement, this Agreement until the retirement of the Notes (i) the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anycopies of each certificate and the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Sections 3.10 and 3.11 of the Sale and Servicing Agreement and the annual independent certified public accountant's servicing reports furnished to the Indenture Trustee pursuant to Section 3.12 of the Sale and Servicing Agreement, by first-class mail as soon as practicable after such statements and reports are furnished to the end Indenture Trustee, and (ii) such other forms of each fiscal yearperiodic certificates or reports as may be delivered to the Indenture Trustee, a copy of its annual report to stockholders for such year; the Owner Trustee or the Noteholders under the Indenture, the Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish to the Representatives Representative by first-class mail as soon as practicable, (i) as soon as availableall documents distributed, a copy or caused to be distributed, by the Company to the Noteholders, (ii) all documents filed or caused to be filed by the Company with the Commission pursuant to the Exchange Act or any order of each report on Form 10-K or 10-Q or definitive proxy statement the Commission thereunder and (iii) such other information in the possession of the Company filed with concerning the Commission under Trust as the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) Representative from time to time, such other information concerning the Company as the Representatives time may reasonably request.
(hi) The Subject to the provisions of Section 9 hereof, the Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters (if and to the extent incurred by them) for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities Notes for sale in jurisdictions that the Representative may designate pursuant to Section 5(f) hereof and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may Representative reasonably designate designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities Notes, for any travel expenses of the officers and employees of the Underwriters and any other expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Notes and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and the Prospectus (including any preliminary prospectus amendments and supplements to Underwritersthereto).
(ij) For To the extent, if any, that the rating provided with respect to the Notes by Xxxxx'x Investors Service, Inc. ("MOODY'S"), Standard & Poor's, a period beginning at division of The XxXxxx-Xxxx Companies, Inc. ("STANDARD & POOR'S"), and Fitch, Inc. ("FITCH" and, together with Standard & Poor's and Moody's, the time "RATING AGENCIES") is conditional upon the furnishing of execution documents or the taking of any other action by the Terms Agreement Company, the Company shall furnish such documents and ending one business day after take any such other action.
(k) On or before the Closing Date, the Company will not, without and AHFC shall annotate and indicate unambiguously in the prior consent computer records of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity AHFC relating to the Receivables to show the Trust's absolute ownership of more the Receivables, and from and after the Closing Date neither the Company nor AHFC shall take any action inconsistent with the Trust's ownership of such Receivables, other than one year from as permitted by the date of issueSale and Servicing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (American Honda Receivables Corp)
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under earlier of (i) completion of the Actsale of the Offered Notes by the Initial Purchaser, or (ii) the 90th day following the Closing Date, any event occurs involving the Company shall occur as a result of which the Prospectus Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Initial Purchaser and prepare and file with furnish to the Commission Initial Purchaser an amendment or supplement which to the Memorandum that will correct such statement or omission omission. The Company will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Memorandum (i) prior to having furnished the Underwriters' delivery of, any such Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) in a manner to which the Initial Purchaser or its counsel shall constitute a waiver of any of the conditions set forth in Section 5reasonably object.
(db) In order During the period referred to comply with the provisions of Section 11(a) of the Actin subsection 6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchaser, without charge, copies of the Registration Statement, Memorandum (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case as soon as reasonably available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Initial Purchaser may reasonably request.
(hc) At all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will make available to each offeree the Additional Offering Documents and information concerning any other relevant matters, as they or any of their affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by them, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent they or any of their affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by them), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will furnish the Initial Purchaser with copies of the Memorandum in such quantities as the Initial Purchaser may from time to time reasonably request, (iv) the Company will not publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to by the Initial Purchaser, (v) the Company will advise the Initial Purchaser promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (vi) the Company will advise the Initial Purchaser promptly upon its receipt of notice of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vii) the Company will advise the Initial Purchaser upon its receipt of notice of the suspension of the qualification of the Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) The Company will pay all expenses incident furnish, upon the written request of any Noteholder or of any owner of a beneficial interest therein, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a Qualified Institutional Buyer designated by such Noteholder or beneficial owner, or (iii) to the performance of its obligations under this Agreement and will reimburse the Underwriters Indenture Trustee for any expenses (including fees and disbursements of counsel) incurred deliver to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by them such Noteholder or beneficial owner with Rule 144A in connection with qualification of the Registered Securities for sale under the laws resale of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating theretoNote or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Terms Agreement Securities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and ending one business day after in compliance with Rule 12g3-2(b).
(e) Prior to the Closing Datedate of distribution of the Memorandum, the Company will notprovide the Initial Purchaser with a “comfort” or “agreed upon procedures” letter from Ernst & Young verifying the accuracy of such financial and statistical data contained in the Memorandum as the Initial Purchaser shall deem advisable.
(f) Except as otherwise provided in the Indenture, without each Offered Note will contain a legend to the prior consent effect set forth in the form of the Representatives, offer, sell, contract Notice to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueInvestors attached as Exhibit I hereto.
Appears in 1 contract
Samples: Purchase Agreement (American Capital Strategies LTD)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Initial Purchaser that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives Initial Purchaser promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Offering Document and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and of supplementation without the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Initial Purchaser's consent. If, at any time when a prospectus relating prior to the completion of the resale of the Offered Securities is required to be delivered under by the ActInitial Purchaser, any event occurs as a result of which the Prospectus Offering Document 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify the Initial Purchaser of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Initial Purchaser's consent to, nor the Underwriters' its delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Initial Purchaser copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementPreliminary Offering Circular, the Prospectus Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Initial Purchaser requests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Initial Purchaser and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and Initial Purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Initial Purchaser all such documents.
(fc) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as the Representatives shall reasonably designate Initial Purchaser designates and will continue such qualifications in effect so long as required for the distribution; provided, however, resale of the Offered Securities by the Initial Purchaser provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state.
(gd) During the period of five two years after the date Closing Date, the Company will, upon request, furnish to the Initial Purchaser and any holder of any Terms AgreementOffered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the Company will furnish to not, and will not permit any of its affiliates (as defined in Rule 144 under the Representatives andSecurities Act) to, upon request, to each resell any of the other Underwriters, if any, as soon as practicable Offered Securities that have been reacquired by any of them.
(f) During the period of two years after the end of each fiscal yearClosing Date, a copy of its annual report to stockholders for such year; and the Company will furnish not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement be registered under Section 8 of the Investment Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hg) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement and will reimburse the Underwriters Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market ("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Initial Purchaser designates and the printing of memoranda relating thereto, for ; (vi) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and for (vii) expenses incurred in distributing the ProspectusPreliminary Offering Circular and the Offering Circular (including any amendments and supplements thereto) to the Initial Purchaser.
(h) In connection with the offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any preliminary prospectuses of its affiliates 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 affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any preliminary prospectus supplements to Underwritersof its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(i) For a period beginning at on the time of execution of the Terms Agreement date hereof and ending one business day after continuing to and including the Closing Date, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge, or otherwise dispose of of, directly or indirectly, any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, without the prior written consent of the Initial Purchaser, or publicly disclose the intention to make any such offer, sale, pledge or disposition. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
(j) In connection with the offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any "affiliated purchaser" (as defined in Rule 100 of Regulation M under the Exchange Act) 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 affiliates has a beneficial interest any Offered Securities or any securities which would be considered "reference securities" (as defined in Rule 100 of Regulation M under the Exchange Act) or attempt to induce any person to purchase any Offered Securities or "reference securities".
Appears in 1 contract
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchasers as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under earlier of (i) completion of the Actsale of the Offered Notes by the Initial Purchasers, or (ii) the 90th day following the Closing Date, any event occurs involving the Company shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Lead Manager and prepare and file with furnish to the Commission Initial Purchasers an amendment or supplement which to the Final Memorandum that will correct such statement or omission omission. The Company will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Final Memorandum (i) prior to having furnished the Underwriters' delivery of, any such Lead Manager with a copy of the proposed form of the amendment or supplement and giving the Initial Purchasers a reasonable opportunity to review the same or (ii) in a manner to which the Initial Purchasers or counsel to the Initial Purchasers shall constitute a waiver of any of the conditions set forth in Section 5reasonably object.
(db) In order During the period referred to comply with the provisions of Section 11(a) of the Actin subsection 6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchasers, without charge, copies of the Registration Statement, Final Memorandum (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case as soon as reasonably available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Initial Purchasers may reasonably request.
(hc) At all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will make available to each offeree the Additional Offering Documents and information concerning any other relevant matters, as they or any of their affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by them, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent they or any of their affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by them), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to by the Initial Purchasers, (v) the Company will advise the Lead Manager promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (vi) the Company will advise the Lead Manager promptly upon its receipt of notice of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vii) the Company will advise the Lead Manager upon its receipt of notice of the suspension of the qualification of the Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) The Company will pay all expenses incident furnish, upon the written request of any Noteholder or of any owner of a beneficial interest therein, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a QIB designated by such Noteholder or beneficial owner, or (iii) to the performance of its obligations under this Agreement and will reimburse the Underwriters Indenture Trustee for any expenses (including fees and disbursements of counsel) incurred delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by them such Noteholder or beneficial owner with Rule 144A in connection with qualification of the Registered Securities for sale under the laws resale of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating theretoNote or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Datesuch request, the Company will not, without Issuer is subject to the prior consent reporting requirements of the Representatives, offer, sell, contract to sell Section 13 or otherwise dispose of any publicly sold (including pursuant to Rule 144A 15(d) of the Securities ActExchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) United States dollar-denominated debt securities issued or guaranteed by [Reserved.]
(f) Except as otherwise provided in the Company and having Indenture, each Offered Note will contain a maturity legend to the effect set forth in the form of more than one year from the date of issueNotice to Investors attached as Exhibit I hereto.
Appears in 1 contract
Samples: Purchase Agreement (American Capital Strategies LTD)
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under 90th day following the ActSecond Upsize Date, any event occurs involving the Company, the Issuer or, to the knowledge of a Responsible Officer of the Company, the Collateral Manager shall occur as a result of which the Prospectus Second Supplemental Offering Circular (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Initial Purchaser and will cause the Issuer to prepare and file with furnish to the Commission Initial Purchaser an amendment or supplement which to the Second Supplemental Offering Circular that will correct such statement or omission omission. The Issuer will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Second Supplemental Offering Circular (i) prior to having furnished the Underwriters' delivery of, any such Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) except to the extent the Company may determine it or the Issuer is required to so disclose pursuant to applicable law and after consultation with the Initial Purchaser (and, in such a circumstance, shall constitute remove all references to the Initial Purchaser therefrom if so requested by the Initial Purchaser), in a waiver of any of manner to which the conditions set forth in Section 5Initial Purchaser or its counsel shall object.
(db) In order During the period referred to comply with the provisions of in Section 11(a) of the Act6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchaser, without charge, copies of the Registration Statement, Second Supplemental Offering Circular (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case case, as soon as reasonably available and in such quantities as are the Initial Purchaser may from time to time reasonably requestedrequest.
(c) Subject to compliance with Regulation FD, at all times during the course of the private placement contemplated hereby and prior to the Second Upsize Date, (i) the Company will make available to each offeree the Second Additional Offering Documents and such information concerning any other relevant matters as it or any of its affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by it or such affiliate, as applicable, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent it or any of its affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by it or such affiliate, as applicable), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Second Additional Issuance Offered Notes except as contemplated herein or as consented to by the Initial Purchaser or in connection with the Company’s disclosure obligations under the Exchange Act, provided that no such disclosure under the Exchange Act would result in a requirement that the offering of the Notes be registered under §5 of the Securities Act, (iv) the Company will advise the Initial Purchaser promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Second Additional Issuance Offered Notes, (v) the Company will advise the Initial Purchaser promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Second Additional Issuance Offered Notes, and (vi) the Company will advise the Initial Purchaser of the suspension of the qualification of the Second Additional Issuance Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) Subject to compliance with Regulation FD, the Company will furnish, upon the written request of any Noteholder or of any owner of a beneficial interest in a Note, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) Except as otherwise provided in the Indenture, each Second Additional Offered Note will contain legends in the forms set forth in the Second Supplemental Offering Circular.
(f) The Company will arrange for Neither the qualification Issuer nor any of its affiliates or any other Person acting on their behalf shall engage, in connection with the offer and sale of the Securities for sale and Second Additional Issuance Offered Notes, in any form of general solicitation or general advertising within the determination meaning of their eligibility for investment Rule 502(c) of Regulation D under the laws of such jurisdictions as Securities Act, including, but not limited to, the Representatives shall reasonably designate and will continue such qualifications following:
(i) any advertisement, article, notice or other communication published in effect so long as required for the distributionany newspaper, magazine or similar medium or broadcast over television or radio; provided, however, that the Company shall not be obligated to file and
(ii) any seminar or meeting whose attendees have been invited by any general consent to service of process solicitation or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedgeneral advertising.
(g) During The Issuer shall not solicit any offer to buy from or offer to sell or sell to any Person any Second Additional Issuance Offered Notes, except through the period Initial Purchaser or with the consent of five years after the date Initial Purchaser and/or as otherwise specified in the Indenture at any time prior to the Second Upsize Date; on or prior to the Second Upsize Date, neither the Issuer nor any of its affiliates (except for compliance by the Company with Regulation FD) shall publish or disseminate any Terms material other than the Second Additional Offering Documents consented to by the Initial Purchaser and the Time of Sale Information in connection with the offer or sale of the Second Additional Issuance Offered Notes as contemplated by this Agreement, unless the Company will furnish Initial Purchaser shall have consented to the Representatives and, upon request, to each of use thereof; if the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy Issuer or any of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as availableaffiliates makes any press release including “tombstone” announcements, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed in connection with the Commission under Transaction Documents, the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed Issuer shall permit the Initial Purchaser to stockholders, review and (ii) from time to time, approve such other information concerning the Company as the Representatives may reasonably requestrelease in advance.
(h) The Company will pay all expenses incident to the performance Issuer shall not take, or permit or cause any of its obligations affiliates to take, any action whatsoever which would have the effect of requiring the registration, under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification Securities Act, of the Registered Securities for offer or sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to UnderwritersSecond Additional Issuance Offered Notes.
(i) For a period beginning at The Issuer shall not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the time of execution Exchange Act or otherwise, in stabilization or manipulation of the Terms Agreement and ending one business day after price of any Second Additional Offered Note to facilitate the Closing Date, the Company will not, without the prior consent sale or resale of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold Second Additional Issuance Offered Notes.
(including pursuant to Rule 144A j) The Company shall apply the net proceeds from the sale of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by Second Additional Issuance Offered Notes as set forth in the Company and having a maturity Section 2.13 of more than one year from the date of issueIndenture.
Appears in 1 contract
Samples: Second Upsize Purchase Agreement (TICC Capital Corp.)
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under 90th day following the ActUpsize Date, any event occurs involving the Company, the Depositor, the Issuer or, to the knowledge of a Responsible Officer of the Company, the Collateral Manager shall occur as a result of which the Prospectus Final Offering Circular (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Initial Purchaser and will cause the Issuer to prepare and file with furnish to the Commission Initial Purchaser an amendment or supplement which to the Final Offering Circular that will correct such statement or omission omission. The Issuer will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Final Offering Circular (i) prior to having furnished the Underwriters' delivery of, any such Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) except to the extent the Company may determine it or the Issuer is required to so disclose pursuant to applicable law and after consultation with the Initial Purchaser (and, in such a circumstance, shall constitute remove all references to the Initial Purchaser therefrom if so requested by the Initial Purchaser), in a waiver of any of manner to which the conditions set forth in Section 5Initial Purchaser or its counsel shall object.
(db) In order During the period referred to comply with the provisions of in Section 11(a) of the Act6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchaser, without charge, copies of the Registration Statement, Final Offering Circular (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case case, as soon as reasonably available and in such quantities as are the Initial Purchaser may from time to time reasonably requestedrequest.
(c) Subject to compliance with Regulation FD, at all times during the course of the private placement contemplated hereby and prior to the Upsize Date, (i) the Company will make available to each offeree the Additional Offering Documents and such information concerning any other relevant matters as it or any of its affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by it or such affiliate, as applicable, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent it or any of its affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by it or such affiliate, as applicable), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Additional Issuance Offered Notes except as contemplated herein or as consented to by the Initial Purchaser or in connection with the Company’s disclosure obligations under the Exchange Act, provided that no such disclosure under the Exchange Act would result in a requirement that the offering of the Additional Issuance Offered Notes be registered under §5 of the Securities Act, (iv) the Company will advise the Initial Purchaser promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Additional Issuance Offered Notes, (v) the Company will advise the Initial Purchaser promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Additional Issuance Offered Notes, and (vi) the Company will advise the Initial Purchaser of the suspension of the qualification of the Additional Issuance Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) Subject to compliance with Regulation FD, the Company will furnish, upon the written request of any Noteholder or of any owner of a beneficial interest in an Additional Issuance Offered Note, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Additional Issuance Offered Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Additional Issuance Offered Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) Except as otherwise provided in the Indenture, each Additional Issuance Offered Note will contain legends in the forms set forth in the Final Offering Circular.
(f) The Company will arrange for Neither the qualification Issuer nor any of its affiliates or any other Person acting on their behalf shall engage, in connection with the offer and sale of the Securities for sale and Additional Issuance Offered Notes, in any form of general solicitation or general advertising within the determination meaning of their eligibility for investment Rule 502(c) of Regulation D under the laws of such jurisdictions as Securities Act, including, but not limited to, the Representatives shall reasonably designate and will continue such qualifications following:
(i) any advertisement, article, notice or other communication published in effect so long as required for the distributionany newspaper, magazine or similar medium or broadcast over television or radio; provided, however, that the Company shall not be obligated to file and
(ii) any seminar or meeting whose attendees have been invited by any general consent to service of process solicitation or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedgeneral advertising.
(g) During The Issuer shall not solicit any offer to buy from or offer to sell or sell to any Person any Additional Issuance Offered Notes, except through the period Initial Purchaser or with the consent of five years after the date Initial Purchaser and/or as otherwise specified in the Indenture at any time prior to the Upsize Date; on or prior to the Upsize Date, neither the Issuer nor any of its affiliates (except for compliance by the Company with Regulation FD) shall publish or disseminate any Terms material other than the Offering Documents and any Additional Offering Documents consented to by the Initial Purchaser in connection with the offer or sale of the Additional Issuance Offered Notes as contemplated by this Agreement, unless the Company will furnish Initial Purchaser shall have consented to the Representatives and, upon request, to each of use thereof; if the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy Issuer or any of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as availableaffiliates makes any press release including “tombstone” announcements, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed in connection with the Commission under Transaction Documents, the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed Issuer shall permit the Initial Purchaser to stockholders, review and (ii) from time to time, approve such other information concerning the Company as the Representatives may reasonably requestrelease in advance.
(h) The Company will pay all expenses incident to the performance Issuer shall not take, or permit or cause any of its obligations affiliates to take, any action whatsoever which would have the effect of requiring the registration, under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification Securities Act, of the Registered Securities for offer or sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to UnderwritersAdditional Issuance Offered Notes.
(i) For a period beginning at The Issuer shall not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the time of execution Exchange Act or otherwise, in stabilization or manipulation of the Terms Agreement and ending one business day after price of any Additional Issuance Offered Note to facilitate the Closing Date, the Company will not, without the prior consent sale or resale of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold Additional Issuance Offered Notes.
(including pursuant to Rule 144A j) The Company shall apply the net proceeds from the sale of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by Additional Issuance Offered Notes as set forth in the Company and having a maturity Section 2.13 of more than one year from the date of issueIndenture.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(1) or Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesRepresentative (which shall not be unreasonably withheld), Rule 424(b)(5subparagraph (3), (4) or (5)) not later than the second business day following the execution and delivery earlier of the Terms date it is first used or the date of this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus with respect to the Prospectus Offered Shares at any time and will afford the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplementsupplement and will not file any such proposed amendment or supplement to which the Representative reasonably object; and the Company will also advise the Representatives Representative promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to any Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, in each case with respect to the Offered Shares, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Shares in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Securities Offered Shares is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Registration Statement or the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including Statement (one of which will be signed and will include all exhibitsexhibits and documents incorporated by reference), any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus relating to the Offered Shares, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities Offered Shares for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distributiondistribution of the Offered Shares; providedprovided that, howeverin connection therewith, that the Company shall not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any jurisdiction or to qualify as a foreign corporation subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualifiedsubject.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish or make available to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish or make available to the Representatives Representative (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, stockholders and (ii) from time to time, such other information concerning the Company as the Representatives Representative may reasonably request.
(h) For the period specified below (the “Lock-Up Period”), the Company will not offer, sell, contract to sell, issue, pledge or otherwise dispose of, directly or indirectly, any shares of Securities or securities convertible into or exchangeable or exercisable for any shares of Securities, enter into a transaction that would have the same effect or offer, sell issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase any shares of Securities or securities convertible into or exchangeable or exercisable for any shares of Securities or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of any shares of Securities or securities convertible into or exchangeable or exercisable for any shares of Securities, whether any such aforementioned transaction is to be settled by delivery of the Securities or such other securities, in cash or otherwise, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position in any shares of Securities or securities convertible into or exchangeable or exercisable for any shares of Securities within the meaning of Section 16 of the Exchange Act or file with the Commission a registration statements relating to any shares of Securities or securities convertible into or exchangeable or exercisable for any shares of Securities or publicly disclose the intention to make any such action, without, in each case, the prior written consent of the Representative. In addition, the undersigned agrees that, without the prior written consent of Credit Suisse, it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any Securities or any security convertible into or exercisable or exchangeable for the Securities. The initial Lock-Up Period will commence on the date hereof and will continue and include the date 60 days after the date hereof or such earlier date that the Representative consents to in writing.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees with the several Underwriters that that the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsels and the Company’s accountants in connection with the registration and delivery of the Offered Shares under the Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any Statutory Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Offered Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Offered Shares under state securities laws and all expenses in connection with the qualification of the Offered Shares for offer and sale under state securities laws as provided in Section 5(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Offered Shares on the NASDAQ Global Select Market, (vi) the cost of printing certificates representing the Offered Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Offered Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement and will reimburse (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 and Section 10 below, the Underwriters for any expenses (will pay all of their costs and expenses, including fees and disbursements of their counsel) incurred , stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.
(j) The Company hereby agrees not to 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 securities of the Company to facilitate the sale or resale of the Offered Shares.
(k) The Company will use the net proceeds received in connection with qualification this offering in the manner described in the “Use of Proceeds” section of the Registered Securities for sale under General Disclosure Package and, except as disclosed in the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing DateGeneral Disclosure Package, the Company will not, without the prior consent does not intend to use any of the Representatives, offer, sell, contract proceeds from the sale of the Offering Shares hereunder to sell or otherwise dispose repay any outstanding debt owed to any affiliate of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueUnderwriter.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx Xxxxxxx Xxxxxxx & XllixXxxxxxxx, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' , delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five ten years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for thereto or any fees charged by investment rating agencies for the rating of the Securities, for the filing fee of the National Association of Securities Dealers, Inc. relating to the Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day thirty days after the Closing Date, the Company will not, without the prior consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Terms Agreement (Barnett Banks Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx Faegre & XllixXxxxxx LLP, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Shares, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesOffered Shares:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During the time when a prospectus relating to the Offered Shares is required to be delivered under the Act, (i) the Company will advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; , and (ii) the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or of any part thereof or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such stop order or suspension, and will use its best efforts to prevent the issuance of any such stop order or suspension and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Offered Shares is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission an a supplement or amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
. (d) In order To make generally available to comply with the provisions of Section 11(a) of the Act, the Company will, its security holders as soon as practicable, but in any event not later than 16 months, eighteen months after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, Statement (iias defined in Rule 158(c) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; providedAct), however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy an earnings statement of the Company filed and its subsidiaries (which need not be audited) complying with Section 11(a) of the Commission Act and the Rules and Regulations (including, at the option of the Company, Rule 158 under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Purchase Agreement (Regis Corp)
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under earlier of (i) completion of the Actsale of the Offered Notes by the Initial Purchaser, or (ii) the 90th day following the Closing Date, any event occurs involving the Company shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Initial Purchaser and prepare and file with furnish to the Commission Initial Purchaser an amendment or supplement which to the Final Memorandum that will correct such statement or omission omission. The Company will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Final Memorandum (i) prior to having furnished the Underwriters' delivery of, any such Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) in a manner to which the Initial Purchaser or its counsel shall constitute a waiver of any of the conditions set forth in Section 5reasonably object.
(db) In order During the period referred to comply with the provisions of Section 11(a) of the Actin subsection 6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchaser, without charge, copies of the Registration Statement, Final Memorandum (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case as soon as reasonably available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Initial Purchaser may reasonably request.
(hc) At all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will make available to each offeree the Additional Offering Documents and information concerning any other relevant matters, as they or any of their affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by them, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent they or any of their affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by them), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to by the Initial Purchaser, (v) the Company will advise the Initial Purchaser promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (vi) the Company will advise the Initial Purchaser promptly upon its receipt of notice of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vii) the Company will advise the Initial Purchaser upon its receipt of notice of the suspension of the qualification of the Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) The Company will pay all expenses incident furnish, upon the written request of any Noteholder or of any owner of a beneficial interest therein, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a QIB designated by such Noteholder or beneficial owner, or (iii) to the performance of its obligations under this Agreement and will reimburse the Underwriters Indenture Trustee for any expenses (including fees and disbursements of counsel) incurred deliver to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by them such Noteholder or beneficial owner with Rule 144A in connection with qualification of the Registered Securities for sale under the laws resale of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating theretoNote or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Datesuch request, the Company will not, without Issuer is subject to the prior consent reporting requirements of the Representatives, offer, sell, contract to sell Section 13 or otherwise dispose of any publicly sold (including pursuant to Rule 144A 15(d) of the Securities ActExchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) United States dollar-denominated debt securities issued or guaranteed by [Reserved.]
(f) Except as otherwise provided in the Company and having Indenture, each Offered Note will contain a maturity legend to the effect set forth in the form of more than one year from the date of issueNotice to Investors attached as Exhibit I hereto.
Appears in 1 contract
Samples: Purchase Agreement (American Capital Strategies LTD)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it that:
(a) Prior to the termination of the Offering, the Company will furnish not file any amendment of the Registration Statement or supplement to Kirkxxxx & Xllixthe Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representatives with a copy for their review prior to filing and will not file any such proposed amendment, xxunsel supplement or Rule 462(b) Registration Statement to which the Representatives reasonably object. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for the Underwriters, one conformed copy any amendment of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(aany Rule 462(b) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Prospectus and will afford the Representatives a reasonable opportunity to comment on or for any such proposed amendment or supplement; and the Company will also advise the Representatives promptly additional information, (iv) of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any part thereof proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered 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 and or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible its liftingthe withdrawal of such stop order or relief from such occurrence or objection, including, if issuednecessary, 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.
(cb) If, at any time when a prospectus relating prior to the Securities is required filing of the Prospectus pursuant to be delivered under the ActRule 424(b), any event or development occurs as a result of which the Statutory Prospectus as then amended or supplemented would include an 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 at such time not misleading, or if the Company will (i) notify promptly the Representatives so that any use of the Statutory Prospectus may cease until it is necessary at any time to amended or supplemented; (ii) amend or supplement the Statutory Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement omission; and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish supply any amendment or supplement to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hc) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Prospectus to comply with the Act or the rules thereunder, the Company promptly will (i) notify the Representatives of any such event; (ii) prepare and file with the Commission, subject to the second sentence of Section 6(a) hereof, an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) supply any supplemented Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(d) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will pay all expenses incident not make any offer relating to the performance Units that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of its obligations under this Agreement the Act.
(f) The Company will furnish to the Representatives and will reimburse counsel for the Underwriters for any expenses Underwriters, without charge, signed copies of the Registration Statement (including fees exhibits thereto) and disbursements to each other Underwriter a copy of counselthe Registration Statement (without exhibits thereto) incurred and, so long as delivery of a prospectus by them an Underwriter or dealer may be required by the Act (including in connection with circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and any 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 Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies will maintain such qualifications in effect so long as required for the rating distribution of the Securities and for expenses incurred Offered Securities; provided that in distributing no event shall the ProspectusCompany 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 Offered Securities, in any preliminary prospectuses and any preliminary prospectus supplements to Underwritersjurisdiction where it is not now so subject.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior written consent of the Representatives, (x) offer, sell, contract to sell sell, pledge or otherwise dispose of (or enter into any publicly sold transaction that is designed to, or might reasonably be expected to, result in the disposition (including pursuant whether by actual disposition or effective economic disposition due to Rule 144A of the Securities Actcash settlement or otherwise) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity or any affiliate of more than one year from the date Company or any person in privity with the Company or any affiliate of issue.the Company), directly or indirectly, including the filing (or participation in the filing) of
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Managers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of any Shares subscribed by Managers, any event occurs as a result of which the Prospectus Offering Documents 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Documents to comply with any applicable law or regulation or any rule of Euronext Paris or to amend documents incorporated by reference in the ActOffering Circular to comply with any applicable rule or regulation of the SEC, the Company promptly will prepare notify the Managers of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. The Company will advise the Managers promptly of any proposal to amend or supplement the Offering Documents and will not effect such amendment or supplement without the Managers’ consent. Neither the Representatives' Managers’ consent to, nor the Underwriters' Managers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(db) In order The Company will notify the Managers promptly if it appears that one of its representations or warranties given herein has become untrue at any time prior to comply with the provisions of Section 11(a) of the Act, payment being made to the Company will, as soon as practicable, but not later than 16 months, after on the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementClosing Date.
(ec) The Company will furnish to the Representatives Managers copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Offering Circular and Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Managers reasonably requestedrequest.
(d) If the Company receives notice from the SEC to the effect that the SEC intends to review the Form 20-F, or otherwise concerning the Form 20-F, the Company shall forthwith notify the Managers and shall send to the Managers a copy of any communications relating to the Form 20-F received from the SEC.
(e) The Company undertakes to use its best efforts to obtain the listing of the New Shares on Eurolist; and the Company undertakes to file with the New York Stock Exchange a Supplemental Listing Application and such other documents as the rules of the New York Stock Exchange may require with respect to the New Shares.
(f) The Company will arrange for use its best efforts to cause the qualification Subscription Rights and New Shares to be admitted to clearance through Euroclear France.
(g) During the period beginning from the date hereof and continuing to and including the date 180 days after the Closing Date, the Company agrees not to offer, sell, issue, contract to sell, pledge, grant any option to purchase or otherwise dispose of, except as provided hereunder, any ordinary shares or any securities of the Securities for Company that are substantially similar to the New Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, ordinary shares or any such substantially similar securities, or make any short sale, engage in any hedging or other transaction that is designed to or that reasonably could be expected to lead to or result in a sale and or disposition of ordinary shares or such substantially similar securities (even if such disposition would be by someone other than the determination Company), or enter into a transaction with similar economic effect, or publicly announce its intention to do any of their eligibility for investment under the laws foregoing, in each case, without the prior written consent of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distributionManagers; provided, however, that the Company shall not be obligated may, without first obtaining such consent: (i) grant stock options in accordance with past practice pursuant to file a stock option plan described in the Offering Documents, or issue shares upon the exercise of any general consent stock options so granted or previously granted pursuant to service plans that are described in the Offering Documents; (ii) issue or transfer shares in the context of process or to qualify as a foreign corporation in any jurisdiction acquisitions in which it is not so qualified.
the party receiving such shares agrees to be bound by restrictions substantially identical to those set forth in this paragraph (g) During in respect of such shares for the period remainder of five years after the date duration of any Terms Agreement, the restrictions on the Company will furnish up to an aggregate maximum of 10% of the share capital outstanding as of the Closing Date; (iii) issue or sell shares to its employees, or to employees of its affiliates, in connection with a capital increase reserved to employees; (iv) transfer shares pursuant to its existing liquidity agreement described in the Offering Documents; and (v) issue or sell shares pursuant to the Representatives and, upon request, to each conversion of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestConvertible Bonds.
(h) The Company shall provide to the Managers a duly executed copy of an undertaking from Institut Français du Pétrole to the effect that it will not transfer any shares it holds in the Company (including the New Shares it receives upon exercise of its Subscription Rights) during the period beginning the date hereof and continuing to and including 120 days after the Closing Date, substantially in the form set forth in Exhibit 5(h) hereto.
(i) The Company shall provide to the Managers a duly executed copy of an undertaking from The Bank of New York, as depositary of the Company’s American Depositary Receipt facility, to the effect that, from the date hereof and until the fortieth day after the Closing Date, deposits in, or pre-releases of American Depositary Receipts of the Company from, such facility shall not be accepted unless the person requesting to make such deposit or pre-release provides a written certification in the form of Exhibit 5(i).
(j) Prior to the Closing Date and for 40 days subsequent to the Closing Date, except if required under applicable laws or regulations, neither the Company nor any of its subsidiaries will issue any press release or other communication directly or indirectly or hold any press conference with respect to the Offering, the Company or any of its subsidiaries, the condition, financial or otherwise (except for routine communications in the ordinary course of business and consistent with past practice), or the earnings, business affairs or business prospects of the Company or any of its subsidiaries, without the prior consent of the Managers, such consent not to be unreasonably withheld.
(k) The Company agrees to pay all expenses incident (together with VAT, where applicable) incidental to the performance of its obligations under this Agreement Agreement, including, subject to receipt of sufficiently itemized accounts (i) the fees, disbursements and will reimburse expenses of the Underwriters for Company’s legal advisors; (ii) the fees, disbursements and expenses of the Company’s accountants; (iii) the fees, disbursements and expenses of the Managers’ legal advisors, Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP up to a maximum amount of EUR 400,000; (iv) all expenses in connection with the preparation and printing of this Agreement, the Offering Circular and the Prospectus and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the New Shares; (v) any expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities New Shares for sale under the laws of such jurisdictions in Europe, the United States and Canada as the Representatives may reasonably Managers designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for ; (vi) expenses incurred in distributing the ProspectusOffering Circular and the Prospectus (including any amendments and supplements thereto) to the Managers; (vii) all expenses associated with the listing of the Subscription Rights and the New Shares on Eurolist, any preliminary prospectuses as well as the fees payable to the AMF and all commissions payable to Eurolist and any preliminary prospectus supplements other French or foreign market authority; (viii) the cost of legal and financial announcements; (ix) the centralisation fee due to UnderwritersBNP Paribas Securities Services in the amount of EUR 60,000; and (x) all other costs and expenses incident to the performance of the Company’s obligations hereunder which are not otherwise specifically provided for in this Agreement. The Company agrees to pay or reimburse the Managers (to the extent incurred by them) for all out-of-pocket expenses (including but not limited to reasonable expenses of the Managers’ due diligence investigation, consultants’ fees, travel expenses and disbursements and fees and expenses of counsel) incurred by it in connection with its obligations hereunder. If the transactions contemplated in this Agreement are not consummated because any condition to the obligations of the Managers set forth in Section 6 hereof is not satisfied, because this Agreement is terminated or because of any failure, refusal or inability on the part of the Company to perform all obligations and satisfy all conditions on their part to be performed or satisfied hereunder (other than solely by reason of a default by a Manager on its obligations hereunder after all conditions hereunder have been satisfied in accordance herewith), the Company agrees to promptly reimburse the Managers upon demand for all reasonable out-of-pocket expenses (including reasonable fees, disbursements and charges of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, the Managers’ legal advisors, up to the EUR 400,000 maximum amount) that shall have been incurred by the Managers in connection with the proposed purchase and sale of the New Shares. The Company shall not be liable to the Managers for loss of contemplated profits from the transactions covered by this Agreement. Other than as set forth in this Section 5(k) each of the parties hereto shall bear all out-of-pocket costs and expenses incurred by them.
(il) For a period beginning at The Company will indemnify and hold harmless the time Managers against any documentary, stamp or similar issuance tax that may be imposed by the Republic of execution France (other than the fixed registration duty and timbres de dimension), including any interest and penalties, that may be payable by the Managers on the issuance and initial sale of the Terms Agreement New Shares and ending one business day after on the Closing Dateexecution and delivery of this Agreement. For the avoidance of doubt, the Managers will pay all of their own costs and expenses, including share transfer taxes, on resales of any of the New Shares by them. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made. If such withholding or deduction of tax is due, the Managers and the Company shall promptly co-operate in completing any procedural formalities necessary for the Company to avoid such withholding or deduction of tax. The Company will not be required to pay such additional amounts to a Manager if the Company is able to demonstrate that the payment of additional amounts could have been made to the Manager without a withholding or deduction of tax had that Manager complied with its obligations to cooperate with the Company.
(m) The Company will not, without and will cause its respective Affiliates not to, nor will the prior consent Company authorize or knowingly permit any person acting on its behalf (excluding the Managers, as to whom no agreement is made) to, solicit any offer to buy or sell the Subscription Rights or New Shares by means of any form of general solicitation or general advertising within the meaning of Regulation D under the Securities Act (“Regulation D”) or in any manner involving a public offering within the meaning of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Representatives, Securities Act; and the Company will not offer, sell, contract to sell or otherwise dispose of of, directly or indirectly, any publicly sold (including pursuant to Rule 144A securities under circumstances where such offer, sale, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities ActAct to cease to be applicable to the Offering as contemplated by this Agreement and the Offering Documents.
(n) United States dollar-denominated debt securities issued None of the Company, its Affiliates or guaranteed by any person acting on its or their behalf (other than the Managers) will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Subscription Rights or New Shares; provided, however, that the Company makes no undertaking as to the actions of any Manager or any person acting on behalf of them.
(o) The Company will use its reasonable best endeavors to do and having a maturity perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of more than one year from the date of issueNew Shares.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representativesapplicable, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus at any time and will afford offer the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Representative promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs as a result of which the Prospectus Final Prospectus, as then amended or supplemented 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, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative may from time to time reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will promptly from time to time take such action as any Underwriter may reasonably request to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate any Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state or province.
(g) During the a period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other public information concerning the Company as the Representatives Representative may reasonably request; provided, however, that any such document filed with the Commission that is publicly available in electronic form on the Commission’s EXXXX system or on the Company’s website shall not be provided.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under the Operative Documents and the Notes Collateral Documents, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and delivery of the Offered Securities, the preparation and printing of this Agreement Agreement, the Offered Securities, the Indenture, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Final Prospectus, all amendments and will reimburse supplements thereto, and any other document relating to the Underwriters for issuance, offer, sale and delivery of the Offered Securities; (iii) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate any Underwriter designates and the printing of memoranda relating thereto, for ; (iv) any fees charged by investment rating agencies for the rating of the Securities and for Offered Securities; (v) expenses incurred in distributing the Preliminary Prospectus, any preliminary prospectuses other documents comprising any part of the General Disclosure Package and the Final Prospectus (including any amendment and supplements thereto) to the Underwriters; (vi) costs and expenses related to the review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees and the fees and expenses of counsel for the Underwriters relating to such review); (vii) all fees and expenses incurred in connection with the perfection of a security interest in the Collateral, including all filing fees, taxes and other amounts payable in connection therewith, including reasonable fees and expenses of the Underwriters’ counsel; and (viii) all travel expenses of the Company’s officers and employees and any preliminary prospectus supplements to other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities. It is understood that, except as provided in this Section and in Sections 9 and 12 hereof, the Underwriters will pay for all travel expenses of the Underwriters’ employees and any other out-of-pocket expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) For a period beginning at The Company will use the time net proceeds received in connection with this offering in the manner described in the “Use of execution Proceeds” section of the Terms Agreement and ending one business day after Final Prospectus and, except as disclosed in the Closing DateFinal Prospectus in compliance with Rule 5121 of the rules of FINRA, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(j) The Company will notnot 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 securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) During the period of 30 days following the date hereof, Holdings will not and will not permit any of its subsidiaries to, without the prior written consent of the RepresentativesRepresentative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, contract to sell pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any publicly sold (including pursuant to Rule 144A of registration statement under the Securities Act) Act in respect of, any United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
Appears in 1 contract
Samples: Underwriting Agreement (United Rentals North America Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) May 11, 2004, the effective date of the Registration StatementStatement relating to the Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five three years after the date of any Terms Agreementhereafter, the Company will furnish or make available to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Representative (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Representative may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees or other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions states in the United States and provinces in Canada as the Representatives may reasonably designate Representative designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities Securities, and for expenses incurred in distributing preliminary prospectus supplements, and the Prospectus, Prospectus (including any preliminary prospectuses amendments and supplements thereto) to the Underwriters. The Company on the one hand and the Underwriters on the other will each pay half of the travel expenses and any preliminary prospectus supplements to Underwritersother expenses of the Underwriters and the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities.
(i) For a period beginning at of 60 days after the time of execution date of the Terms Agreement and ending one business day after initial offering of the Closing DateSecurities, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional Securities or other debt securities, or publicly sold (including pursuant disclose the intention to Rule 144A make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueRepresentative.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representativesapplicable, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus at any time and will afford offer the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Representative promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs as a result of which the Prospectus Final Prospectus, as then amended or supplemented 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, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative may from time to time reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will promptly from time to time take such action as any Underwriter may reasonably request to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate any Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state or province.
(g) During the a period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other public information concerning the Company as the Representatives Representative may reasonably request; provided, however, that any such document filed with the Commission that is publicly available in electronic form on the Commission’s XXXXX system or on the Company’s website shall not be provided.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under the Operative Documents, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and delivery of the Offered Securities, the preparation and printing of this Agreement Agreement, the Offered Securities, the Indenture, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Final Prospectus, all amendments and will reimburse supplements thereto, and any other document relating to the Underwriters for issuance, offer, sale and delivery of the Offered Securities; (iii) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate any Underwriter designates and the printing of memoranda relating thereto, for ; (iv) any fees charged by investment rating agencies for the rating of the Securities and for Offered Securities; (v) expenses incurred in distributing the Preliminary Prospectus, any preliminary prospectuses other documents comprising any part of the General Disclosure Package and the Final Prospectus (including any amendment and supplements thereto) to the Underwriters; (vi) costs and expenses related to the review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees and the fees and expenses of counsel for the Underwriters relating to such review); and (vii) all travel expenses of the Company’s officers and employees and any preliminary prospectus supplements to other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities. It is understood that, except as provided in this Section and in Sections 9 and 12 hereof, the Underwriters will pay for all travel expenses of the Underwriters’ employees and any other out-of-pocket expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) For a period beginning at The Company will use the time net proceeds received in connection with this offering in the manner described in the “Use of execution Proceeds” section of the Terms Agreement Final Prospectus and ending one business day after in accordance with the Closing Datecovenants contained in the debt instruments described in the “Description of Our Other Indebtedness” section of the Final Prospectus and, except as disclosed in the Final Prospectus in compliance with Rule 5121 of the rules of FINRA, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(j) The Company will notnot 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 securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) During the period of 30 days following the date hereof, Holdings will not and will not permit any of its subsidiaries to, without the prior written consent of the RepresentativesRepresentative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, contract to sell pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any publicly sold (including pursuant to Rule 144A of registration statement under the Securities Act) Act in respect of, any United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, other than the Senior Secured Notes.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guaranties.
(n) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
Appears in 1 contract
Samples: Underwriting Agreement (United Rentals North America Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, Underwriters one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Final Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During any time when a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Final Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings or any notice from the Commission objecting to its use in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) The Company will prepare a final term sheet, containing solely a description of the Offered Securities, in a form approved by the Representatives, and will file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule.
(d) 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 the Representatives, so that any use of the Disclosure Package may cease until it is amended or supplemented, and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement that will correct such statement or omission or an amendment that will effect such compliance.
(e) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer (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 an untrue statement of a material fact 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 is necessary at any time to amend the Final Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which that will correct such statement or omission or an amendment which that will effect such compliance. The terms “supplement” and “amendment” as used in this Agreement include, without limitation, all documents filed by the Company with the Commission subsequent to the date of the Final Prospectus that are deemed to be incorporated by reference in the Final Prospectus. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(df) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms Agreement, ConocoPhillips will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later latest of (i) the effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's ConocoPhillips’ most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(eg) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, and during any related preliminary prospectustime when a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer (including in circumstances where such requirement may be satisfied pursuant to Rule 172), the Base Prospectus, any related preliminary prospectus supplementPreliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives reasonably requestedrequest.
(fh) The Company will use its reasonable best efforts to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall none of ConocoPhillips, Funding or CPCo will be required in connection therewith to register or qualify as a foreign corporation where it is not be obligated now so qualified or to file any execute a general consent to service of process or to qualify as a foreign corporation in any jurisdiction or subject itself to taxation in which any jurisdiction where it is not now so qualifiedsubject. The Company will promptly advise the Representatives of the receipt by it or CPCo of any notification with respect to the suspension of the qualification of the Offered Securities for offer and sale in any such jurisdiction or the initiation or threatening of any proceeding for such purpose.
(gi) During the period of five years after the date of any Terms Agreement, the Company will furnish or make available to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its ConocoPhillips’ annual report to stockholders for such year; and the Company will furnish or make available to the Representatives (i) as soon as available, a copy of each report (other than a report on Form 1011-K or 10-Q or K) and any definitive proxy statement of the Company ConocoPhillips filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company ConocoPhillips, Funding or CPCo as the Representatives may reasonably requestrequest in connection with the offering of the Offered Securities.
(hj) The Company will pay all expenses incident to the performance of its obligations under the Terms Agreement (including the provisions of this Agreement and will reimburse the Underwriters Agreement), for any filing fees or other expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate in accordance with Section 4(h) and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any applicable filing fee incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, the review by the National Association of Securities Dealers, Inc. of the Registered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and for expenses incurred in preparing, printing and distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(k) The Company agrees that, unless it has obtained or will obtain, as the case may be, 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 Offered Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than the final term sheet prepared and filed pursuant to Section 4(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, included in Schedule B to the applicable Terms Agreement. 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.
(l) The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an Issuer Free Writing Prospectus, and (b) contains only (i) For information describing the preliminary terms of the Offered Securities or their offering, (ii) information required or permitted by Rule 134 under the Act that is not “issuer information” as defined in Rule 433 or (iii) information that describes the final terms of the Offered Securities or their offering and that is included in the final term sheet prepared and filed pursuant to Section 4(c) hereto.
(m) Neither ConocoPhillips nor Funding will, and ConocoPhillips will cause CPCo not to, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to United States dollar-denominated debt securities issued or guaranteed by ConocoPhillips, Funding or CPCo and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the time of execution of the Terms Agreement and ending one business day the number of days after the Closing Date, Date specified under “Blackout” in the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueTerms Agreement.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Agents that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives each Agent promptly of any proposal to amend or supplement the Prospectus or the Registration Statement or to register the Prospectus and will afford Securities under any registration statements other than the Representatives a reasonable opportunity Registration Statement referred to comment on in Section 2(a) above (other than any such proposed proposal for an amendment or supplement; supplement or additional registration statement that relates only to the offering and sale of securities other than the Securities or the offering and sale of Securities other than through such Agent). The Company will also advise the Representatives each Agent promptly (i) of the filing with the Commission of any such each amendment or supplement to the Prospectus or the Registration Statement and each such additional registration statement (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than the Securities or the offering and sale of Securities other than through such Agent), (ii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof such additional registration statement, and will use its best efforts to prevent the issuance of any such stop order and and, if such a stop order is issued, to obtain its lifting as soon as possible its lifting, if issuedand (iii) receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose.
(cb) If, at any time when a prospectus relating to the Securities Prospectus is required to be delivered under the Act, any event occurs shall occur as a result of which the Prospectus as then amended or supplemented would shall include an untrue statement of a material fact 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 is shall be necessary at any time to amend or supplement the Registration Statement or the Prospectus to comply with the Act, the Company will promptly will (i) notify each Agent to suspend the solicitation of purchases of the Securities and to cease sale of any Securities by the Lead Agent and (ii) prepare and file with the Commission an amendment or supplement which that will correct such untrue statement or omission or an amendment which will effect such compliance. Neither .
(c) The Company agrees that it will not solicit or accept offers to purchase Securities from any Agent during any period when (i) the Representatives' consent toCompany shall have been advised by either Mxxxx’x Investors Services, nor Inc. or Standard & Poor’s Corporation that such organization has determined to downgrade the Underwriters' delivery ofrating of the Securities or any other debt obligations or any preferred stock of the Company and such downgrade shall not yet have been publicly announced, or (ii) there shall have occurred a material change in the financial condition or business of the Company and its subsidiaries, taken as a whole, and such event shall not have been disclosed in the Prospectus (directly or by incorporation by reference); provided, however, that the Company shall not be obligated to inform any such amendment Agent of the reason for, or supplement shall constitute a waiver describe the occurrence of any event that may have occasioned the need for, the suspension of the conditions set forth in Section 5its solicitation or acceptance of offers.
(d) In order Not later than 16 months after the date of each acceptance by the Company of an offer to comply with purchase Securities hereunder, the Company will make generally available to its security holders an earnings statement that will satisfy the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement Act and Rule 158 thereunder covering a period of at least 12 months beginning after the later last to occur of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement acceptance and (iii) the date of filing with the Commission Annual Report of the Company's most recent Annual Report Company on Form 10-K most recently filed with the Commission prior to the date of such Terms Agreementacceptance.
(e) The Company will furnish to the Representatives each Agent copies of the Prospectus and of the Registration StatementStatement (including the exhibits thereto relating to the offering by the Company thereunder of the Securities, including all exhibitsbut excluding the documents incorporated by reference), any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to the Prospectus and the Registration Statement and all additional registration statements pursuant to which any of the Securities may be registered (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than Securities or any pricing supplement relating to the offering and sale of Securities other than through such documentsAgent), in each case as soon as available and in such quantities as are shall be reasonably requested. The Company will prepare, with respect to any Securities to be sold through or to the Agents pursuant to this Agreement, a pricing supplement with respect to such Securities in substantially the form attached hereto as Exhibit F (a “Pricing Supplement”) and will file such Pricing Supplement with the Commission pursuant to Rule 424(b) under the Securities Act not later than the time specified by such rule.
(f) The Company will arrange for the qualification of the Securities for sale, if any, and the determination of their eligibility for investment under the laws of such jurisdictions as the Lead Agent may designate and will continue such qualifications in effect so long as required for the distribution of the Securities; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any such jurisdiction.
(g) At any time when a Prospectus is required to be delivered under the Act, and if not publicly available through the Commission’s website, the Company will furnish to each Agent, (i) as soon as practicable after the end of each fiscal year, the number of copies reasonably requested by such Agent of its annual report to stockholders for such year, (ii) as soon as available, the number of copies reasonably requested by such Agent of each report (including without limitation reports on Forms 10-K, 10-Q and 8-K) or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or mailed to stockholders and (iii) from time to time, such other information concerning the Company as such Agent may reasonably request. The Company also will furnish each Agent with copies of any press release or general announcement to the general public, in each case upon request by the Agent.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and the reasonable fees and disbursements of Cravath, Swaine & Mxxxx LLP, counsel for the Agents, in connection with the offering and sale of the Securities and will reimburse each Agent for any expenses (including fees and disbursements of counsel) incurred by it in connection with the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Agent may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, thereto and for any fees charged by investment rating agencies for the rating of the Securities. The Company will determine with the Agents the amount of advertising, if any, appropriate in connection with the solicitation of offers to purchase Securities and for will pay, or reimburse the Agents for, all advertising expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwritersapproved by it.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Underwriter that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesUnderwriter, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Underwriter a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Underwriter promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by the Underwriter or any dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Underwriter of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriter's consent to, nor the Underwriters' Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, ,
(ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Underwriter copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Underwriter reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) requests. The Company will pay all the expenses incident of printing and distributing to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of Underwriter all such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwritersdocuments.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Underwriting Agreement (Kopin Corp)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the any Registration Statement or the any Statutory Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplement without the Representative’s consent; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the any Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is (or, but for the exemption in Rule 172, would be) required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives Representative copies of the each Registration Statement, including all exhibits, any related preliminary prospectusStatutory Prospectus, any related preliminary prospectus supplementIssuer Free Writing Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Representative requests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreementhereafter, upon request, the Company will furnish to the Representatives and, upon request, Representative and to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) For a period of forty-five (45) days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representative except issuances of Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, grants of stock options or other equity awards pursuant to the terms of a plan in effect on the date hereof and disclosed in the General Disclosure Package and the Final Prospectus, issuances of Securities pursuant to the exercise, vesting or settlement of such options or other equity awards or issuances of Securities pursuant to the Company’s dividend reinvestment plan or issuances of Securities pursuant to the Company’s employee stock purchase plan as in effect on the date hereof and disclosed in the General Disclosure Package and the Final Prospectus.
(i) The Company agrees with the several Underwriters that the Company will pay all expenses incident to the performance of its the obligations of the Company under this Agreement Agreement, including but not limited to, any filing fees and will reimburse the Underwriters for any other expenses (including documented fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Representative designates and the preparation and printing of memoranda relating thereto, for any costs and expenses related to review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees charged by investment rating agencies and the fees and expenses of counsel for the rating Underwriters relating to such review), any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, including 75% of the cost of any aircraft chartered with the consent of the Company in connection with attending or hosting such meetings, fees and expenses incident to listing the Offered Securities on the NASDAQ Global Market, fees and for expenses in connection with the registration of the Offered Securities under the Exchange Act, expenses incurred in distributing the Prospectus, any preliminary prospectuses and the Final Prospectus (including any preliminary prospectus amendments and supplements thereto) to Underwritersthe Underwriters and expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors.
(ij) For a period beginning at the time of execution of the Terms Agreement The Company represents and ending one business day after the Closing Dateagrees that, the Company will not, without unless it obtains the prior consent of the RepresentativesRepresentative, offerand each Underwriter represents and agrees that, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A unless it obtains the prior consent of the Company and the Representative, it has not made and will not make any offer relating to the Offered Securities Act) United States dollar-denominated debt securities issued that would constitute an Issuer Free Writing Prospectus, or guaranteed that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and having the Representative is hereinafter referred to as a maturity “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of more than one year from Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
(k) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, stabilization or manipulation of the date price of issueany securities of the Company to facilitate the sale or resale of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The If the Effective Time is prior to the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2subparagraph (1) (or, if applicable and if consented to by the RepresentativesCredit Suisse First Boston, subparagraph (4)) of Rule 424(b)(5)424(b) not later than the earlier of (i) the second business day following the execution and delivery of this Agreement or (ii) the Terms Agreementfifteenth business day after the Effective Date. The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the registration statement as filed or the related prospectus, or the Registration Statement or the Prospectus Prospectus, and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Representative's consent; and the Company will also advise the Representatives Representative promptly of the filing effectiveness of the Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement) and of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission (subject to the Representative's prior review pursuant to Section 5(b)), at its own expense, an amendment or supplement which will correct such statement or omission omission, or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' , delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will cause the Trust to make generally available to its securityholders the Noteholders an earnings statement of the Trust covering a period of at least 12 months beginning after the later Effective Date which will satisfy the provisions of (iSection 11(a) the effective date of the Registration Statement, (ii) Act. For the effective date purpose of the most recent post-effective amendment to preceding sentence, "Availability Date" means the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 90th day after the end of each the Trust's fourth fiscal year, a copy of its annual report to stockholders for quarter following the fiscal quarter that includes such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestEffective Date.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Agent that, in connection with each offering of Securities:
(a) The Company will file will, at its expense, supply or cause to be supplied to the Prospectus Agent, promptly following any request therefor by the Agent, a disclosure document (the "Offering Document") in form and substance satisfactory to the Agent that describes the Company (which description may be by incorporation by reference of filings by the Company with the Securities and Exchange Commission pursuant (the "Commission")), the Bonds, the Indenture, the Loan Agreement, the Note, [the Bond Insurance Policy,] the federal income tax consequences to and in accordance with Rule 424(b)(2) (orthe owners of the Bonds, the remarketing arrangements and, if applicable the Bonds will be in a Long Term Rate Period, the Company's First Mortgage and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required First Mortgage Bond to be delivered under to the ActTrustee pursuant to the Indenture, together with such number of copies of the Offering Document and documents relating thereto as the Agent may reasonably request. If any event of which the Company has knowledge occurs as a result of which the Prospectus Offering Document. as then amended or supplemented supplemented, would include an untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply Company, in cooperation with the ActIssuer and the Agent, the Company will promptly will prepare and file with the Commission an amendment amend or supplement which will the Offering Document to correct such statement or omission or an amendment which will effect supply such compliance. Neither the Representatives' consent toomitted fact; provided, nor the Underwriters' delivery ofhowever, any that no such amendment or supplement shall constitute will be made prior to allowing the Agent a waiver reasonable opportunity to review it. The Company will supply or cause to be supplied to the Agent such number of any copies of the conditions set forth in Section 5.
(d) Offering Document, as so amended, or such supplement as the Agent may reasonably request from time to time. In order any event, the Company sha11 supply or cause to be supplied to the Agent sufficient copies of the Offering Document, and any amendments or supplements thereto, within such time period as shall permit the Agent to comply with the provisions of Rule 15c2-12 promulgated by the Commission, to the extent applicable (the "Rule" ). The Company further agrees that it will enter into such written undertakings as may be required under the provisions of Section 11(a(b)(5) of the Act, Rule.
(b) The Company immediately will notify the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of Agent by telephone (promptly confirmed in writing) of: (i) any fact or occurrence as a result of which the effective date of the Registration StatementOffering Document would be or become false or misleading in any materia1 respect, (ii) any material adverse change in the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission financial condition or general affairs of the Company's most recent Annual , including any fact or occurrence as a result of which it become necessary for the Company to file a Current Report on Form 108-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (iii) any replacement of the Trustee, the Bond Registrar, the Paying Agent or mailed the Tender Agent under the Indenture, (iv) any event of default under the Indenture, the Loan Agreement or any event which, with notice or lapse of time or both, would constitute such an event of default, (v) any failure on the part of the Bond Insurer to comply with the provisions of the Bond Insurance Policy, (vi) the provision of any credit enhancement or liquidity facility pursuant to the Indenture, (vii) any change in the dates for the redemption or purchase of the Bonds, (viii) any reduction, qualification or withdrawal or any suggestion by the rating agency or agencies rating the Bonds that it is, or either of them are considering a possible reduction, qualification or withdrawal in the rating of the Bonds, (ix) any adverse change or threatened adverse change, in the federal income tax treatment of owners of the Bonds and (x) the need for an opinion of tax counsel as to the tax status of any of the Bonds.
(c) The Company will deliver to the Agent (i) copies of all reports or other communications furnished to stockholders, and (ii) from time copies of all reports and financial statements furnished to time, or filed with the Commission or any national securities exchange on which any securities of the Company are listed and (iii) such other additional information concerning the business and financial condition of the Company as the Representatives Agent may from time to time reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, if available, one conformed signed copy of the Registration StatementStatement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Statutory Prospectus (including the Prospectus) with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Statutory Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exception in Rule 172 would be) required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representatives consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof. If, prior to the Closing Date, there occurs an event or development as a result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the General Disclosure Package is delivered to a purchaser, not misleading, the Company promptly will notify the Representatives, and will promptly prepare an amendment or supplement that will correct such statement or omission.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies one copy each of the Registration Statement, including all exhibits, any Statutory Prospectus, one copy each of any related preliminary prospectus, if available, one copy of each Issuer Free Writing Prospectus and copies of any related preliminary prospectus supplementsupplement related to the Offered Securities, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Lead Underwriter reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions of the United States as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms this Agreement, the Company will furnish or otherwise make available to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish or otherwise make available to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for Agreement, including but not limited to any filing fees or other expenses (including reasonable legal fees and disbursements of counsel) incurred by them in connection with qualification or exemption of the Registered Offered Securities for sale under the securities and real estate syndication laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any applicable filing fee and expense incident to, any review by the National Association of Securities Dealers, Inc. of the Registered Securities, for all expenses incident to the registration of the Offered Securities and the printing and the wordprocessing of copies of the Registration Statement, any prospectus and this Agreement, for the fees and expenses of the Trustee, including if required the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Offered Securities, for the fees and expenses of any depositary in connection with holding the Offered Securities in book-entry form, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectus supplements, any preliminary prospectus Issuer Free Writing Prospectus or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) of, directly or indirectly, United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueissue without the prior written consent of the Representatives for a period beginning at the time of execution of this Agreement and ending on the 30th day following such 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 Offered Securities.
(k) The Company will use the net proceeds received by it from the sale of the Offered Securities sold by it in the manner specified in the Prospectus under “Use of Proceeds”.
(l) The Company will use its best efforts to continue to meet the requirements to qualify as a “real estate investment trust” under the Code.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5), such consent not to be unreasonably withheld or delayed) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus and will afford not undertake any such amendment or supplement if the Representatives a reasonable opportunity to comment on any such proposed amendment or supplementreasonably object in writing thereto; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by the Underwriters or any dealer, any event occurs as a result of which the Prospectus Prospectus, as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by the Underwriters or any dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Representatives request. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectuspreliminary prospectuses, any preliminary prospectuses and any preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to Underwritersthe Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors; provided that on the First Closing Date, the Underwriters (acting collectively) will reimburse the Company for up to $[•] of expenses incurred by the Company in the performance of its obligations under this Agreement.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day [•] days after the Closing Datedate of this Agreement, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its common stock or securities convertible into or exchangeable or exercisable for any shares of its common stock, or publicly sold disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of [•], except (including i) grants of employee and director stock options or restricted stock pursuant to Rule 144A the terms of a plan in effect on the Securities Actdate hereof, (ii) United States dollar-denominated debt securities issued issuances of common stock pursuant to the exercise of options, preferred stock, contingent convertible senior notes or guaranteed by the Company and having a maturity of more than one year from warrants outstanding on the date of issuethe initial offering of the Offered Securities, (iii) issuances of common stock in exchange for preferred stock or contingent convertible senior notes of the Company outstanding on the date of the initial offering of the Offered Securities and (iv) the filing of a registration statement in accordance with a registration rights agreement relating to any preferred stock or contingent convertible senior notes of the Company outstanding on the date of the initial offering of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or the Prospectus any Supplemental Marketing Material and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement without the Representative’s consent, such consent not to be unreasonably withheld. The Company will timely file all reports required to be filed by the Company pursuant to Section 13(a), 13(c) and 15(d) of the institution Exchange Act for so long as deliveries of an offering circular are being made by the Commission of any stop order proceedings Purchasers in respect connection with the offering or sale of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Notes. If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of the Notes by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and promptly will prepare and file with furnish, at its own expense, to the Commission Purchasers and the dealers and to any other dealers at the request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' Representative’s consent to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Representative copies of the Registration StatementPreliminary Offering Circular, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementeach other document comprising a part of the General Disclosure Package, the Prospectus and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Securities Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; providedresale of the Notes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited liability company or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation take any action that would subject itself to taxation based on income or revenues in any such jurisdiction in which where it is not so qualifiedcurrently subject to taxation.
(gd) During the period of five years one year after the date of any Terms AgreementClosing Date, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anyPurchasers, as soon as practicable after the end of each fiscal year, a copy of its the Company’s annual report to stockholders for such year; and the Company will furnish to the Representatives (i) Representative and, upon request, to each of the other Purchasers as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholdersunitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, it is not required to furnish such reports or statements to the Purchasers.
(e) During the period of one year after the Closing Date, the Company will, upon reasonable request, furnish to the Representative, each of the other Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(f) During the period of one year after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them. Neither the Company nor any affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of (i) the sale of the Notes by the Company to the Purchasers, (ii) from time the resale of the Notes by the Purchasers to timeany subsequent purchasers or (iii) the resale of the Notes by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, such other information concerning the Company as will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Representatives may reasonably requestInvestment Company Act.
(h) None of the Company, its affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company makes no representation) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Notes, and the Company and its affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incident incidental to the performance of its respective obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters for Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Common Security Trustee and any transfer agent, registrar or depositary and their professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counselcounsel to the Purchasers) incurred by them in connection with qualification of the Registered Securities Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate Representative designates and the preparation and printing of memoranda relating thereto, for ; (vi) any fees charged by investment rating agencies for the rating of the Securities Notes; (vii) all fees, disbursements and for expenses of the Independent Engineer who has prepared reports in connection with the transactions contemplated by this Agreement; (viii) expenses incurred in distributing the ProspectusPreliminary Offering Circular, any preliminary prospectuses other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any preliminary prospectus supplements Supplemental Marketing Material to Underwritersthe Purchasers; (ix) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (x) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes.
(ik) For a period beginning at The Company will use the time of execution net proceeds received in connection with the offering of the Terms Agreement Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representative shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes; and ending one business day after neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(m) Until the Closing Date, the Company will not, without the prior consent directly or indirectly, take any of the Representatives, offer, sell, contract following actions with respect to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) 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, (iv) 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 (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement or the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of RBC Capital Markets, LLC. The Company will not at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplement without the Representatives’ consent; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is (or, but for the exemption in Rule 172, would be) required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives copies of the each Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Representatives request. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreementhereafter, upon request, the Company will furnish to the Representatives and, upon request, and to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) For a period of 45 days after the date of this Agreement, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Credit Suisse except issuances of Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, issuances of Securities pursuant to the exercise of such options or issuances of Securities pursuant to the Company’s dividend reinvestment plan or issuances of Securities pursuant to the Company’s employee stock purchase plan as in effect on the date hereof.
(i) The Company agrees with the several Underwriters that the Company will pay all expenses incident to the performance of its the obligations of the Company under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating travel expenses of the Securities Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, including 75% of the cost of any aircraft chartered in connection with attending or hosting such meetings, and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and the Final Prospectus (including any preliminary prospectus amendments and supplements thereto) to the Underwriters.
(ij) For a period beginning at The Company represents and agrees that, unless it obtains the time prior consent of execution of the Terms Agreement Credit Suisse, and ending one business day after the Closing Dateeach Underwriter represents and agrees that, the Company will not, without unless it obtains the prior consent of the RepresentativesCompany and Credit Suisse, offerit has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, sellor that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, contract required to sell or otherwise dispose of any publicly sold (including pursuant be filed with the Commission. Any such free writing prospectus consented to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having Credit Suisse is hereinafter referred to as a maturity “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of more than one year from the date of issueRules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representativesapplicable, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus at any time and will afford offer the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs as a result of which the Prospectus Final Prospectus, as then amended or supplemented 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, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may from time to time reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will promptly from time to time take such action as any Underwriter may reasonably request to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate any Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state or province.
(g) During the a period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives and, upon request, to each of the other Underwriters (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other public information concerning the Company as the Representatives may reasonably request; provided, however, that any such document filed with the Commission that is publicly available in electronic form on the Commission’s XXXXX system or on the Company’s website shall not be provided.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under the Operative Documents, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and delivery of the Offered Securities, the preparation and printing of this Agreement Agreement, the Offered Securities, the Indenture, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Final Prospectus, all amendments and will reimburse supplements thereto, and any other document relating to the Underwriters for issuance, offer, sale and delivery of the Offered Securities; (iii) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate any Underwriter designates and the printing of memoranda relating thereto, for ; (iv) any fees charged by investment rating agencies for the rating of the Securities and for Offered Securities; (v) expenses incurred in distributing the Preliminary Prospectus, any preliminary prospectuses other documents comprising any part of the General Disclosure Package and the Final Prospectus (including any amendment and supplements thereto) to the Underwriters; (vi) costs and expenses related to the review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees and the fees and expenses of counsel for the Underwriters relating to such review); and (vii) all travel expenses of the Company’s officers and employees and any preliminary prospectus supplements to other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities. It is understood that, except as provided in this Section and in Sections 8 and 10 hereof, the Underwriters will pay for all travel expenses of the Underwriters’ employees and any other out-of-pocket expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the Final Prospectus and in accordance with the covenants contained in the debt instruments described in the “Description of Our Other Indebtedness” section of the Final Prospectus and, except as disclosed in the Final Prospectus in compliance with Rule 2720 of the rules of FINRA, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(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, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) For a period beginning at on the time of execution of the Terms Agreement date hereof and ending one business day 30 days after the Closing Date, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of of, directly or indirectly, or file with the Commission a registration statement under the Act relating to any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guaranties.
(n) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or the Prospectus any Supplemental Marketing Material and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement without the Representative’s consent, such consent not to be unreasonably withheld. The Company will timely file all reports required to be filed by the Company pursuant to Section 13(a), 13(c) and 15(d) of the institution Exchange Act for so long as deliveries of an offering circular are being made by the Commission of any stop order proceedings Purchasers in respect connection with the offering or sale of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Notes. If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of the Notes by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and promptly will prepare and file with furnish, at its own expense, to the Commission Purchasers and the dealers and to any other dealers at the request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' Representative’s consent to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Representative copies of the Registration StatementPreliminary Offering Circular, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementeach other document comprising a part of the General Disclosure Package, the Prospectus and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Securities Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; providedresale of the Notes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited liability company or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation take any action that would subject itself to taxation based on income or revenues in any such jurisdiction in which where it is not so qualifiedcurrently subject to taxation.
(gd) During the period of five years one year after the date of any Terms AgreementClosing Date, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anyPurchasers, as soon as practicable after the end of each fiscal year, a copy of its the Company’s annual report to stockholders for such year; and the Company will furnish to the Representatives (i) Representative and, upon request, to each of the other Purchasers as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company and of any guarantor that is a reporting company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholdersunitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, it is not required to furnish such reports or statements to the Purchasers.
(e) During the period of one year after the Closing Date, the Company will, upon reasonable request, furnish to the Representative, each of the other Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(f) During the period of one year after the Closing Date, the Company will not, and will not permit any of its Affiliates to, resell any of the Notes that have been reacquired by any of them. Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of (i) the sale of the Notes by the Company to the Purchasers, (ii) from time the resale of the Notes by the Purchasers to timeany subsequent purchasers or (iii) the resale of the Notes by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, such other information concerning the Company as will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Representatives may reasonably requestInvestment Company Act.
(h) None of the Company, its Affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company makes no representation) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Notes, and the Company and its Affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incident incidental to the performance of its obligations under this Agreement, the Indenture, the Registration Rights Agreement and will reimburse the Underwriters Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Common Security Trustee and any transfer agent, registrar or depositary and their professional advisers for which the Company is responsible; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Registration Rights Agreement, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counselcounsel to the Purchasers) incurred by them in connection with qualification of the Registered Securities Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate Representative designates and the preparation and printing of memoranda relating thereto, for ; (vi) any fees charged by investment rating agencies for the rating of the Securities Notes; (vii) all fees, disbursements and expenses of Xxxxxx Consultants International, Inc. (the “Independent Engineer”) and any other third-party consultants who have prepared reports in connection with the transactions contemplated by this Agreement, in each case for which the Company is responsible, and Wood Mackenzie Limited; (viii) expenses incurred in distributing the ProspectusPreliminary Offering Circular, any preliminary prospectuses other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any preliminary prospectus supplements Supplemental Marketing Material to Underwritersthe Purchasers; (ix) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (x) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including, subject to prior approval by the Company, the chartering of airplanes.
(ik) For a period beginning at The Company will use the time of execution net proceeds received in connection with the offering of the Terms Agreement Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representative shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its Affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its Affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes; and ending one business day after neither it nor any of its Affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(m) Until the Closing Date, the Company will not, without the prior consent directly or indirectly, take any of the Representatives, offer, sell, contract following actions with respect to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) 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, (iv) 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 (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement and the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of the Representative. The Company will not at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The If the Effective Time is prior to the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2subparagraph (1) (or, if applicable and if consented to by the RepresentativesXxxxxxx Xxxxx, subparagraph (4)) of Rule 424(b)(5)424(b) not later than the earlier of (i) the second business day following the execution and delivery of this Agreement or (ii) the Terms Agreementfifteenth business day after the Effective Date. The Company will advise the Representative promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the registration statement as filed or the related prospectus, or the Registration Statement or the Prospectus Prospectus, and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupple mentation without the Representative's consent; and the Company will also advise the Representatives Representative promptly of the filing effectiveness of the Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement) and of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act1933 Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the 1933 Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission (subject to the Representative's prior review pursuant to Section 5(b)), at its own expense, an amendment or supplement which will correct such statement or omission omission, or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' , delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will cause the Trust to make generally available to its securityholders the Noteholders an earnings statement of the Trust covering a period of at least 12 months beginning after the later Effective Date which will satisfy the provisions of (iSection 11(a) the effective date of the Registration Statement, (ii) 1933 Act. For the effective date purpose of the most recent post-effective amendment to preceding sentence, "Availability Date" means the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 90th day after the end of each the Trust's fourth fiscal year, a copy of its annual report to stockholders for quarter following the fiscal quarter that includes such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestEffective Date.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) : The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Offering Document and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and supplementation without each of the institution by the Commission of any stop order proceedings in respect of the Registration Statement Representatives' consent (which shall not be unreasonably withheld or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) delayed). If, at any time when a prospectus relating prior to the completion of the initial resale of the Offered Securities is required to be delivered under by the ActPurchasers, any event occurs as a result of which the Prospectus Offering Document 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' consent to, nor the UnderwritersPurchasers' delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) 6. The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementoffering circular, the Prospectus Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
the Representatives request, and the Company will furnish to the Representatives as of the date hereof five copies of the final Offering Document signed by a duly authorized officer of the Company. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and the outstanding Offered Securities or Common Stock issuable upon conversion thereof constitute "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company will promptly furnish or cause to be furnished to the Representatives (fand, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of such restricted securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of such restricted securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of such restricted securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents. The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; providedresale of the Offered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) such state. During the period of five years after hereafter (to the date of any Terms Agreementextent that the Offered Securities are then outstanding), the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if anyPurchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders shareholders for such year; and the Company will furnish to the Representatives (i) and, upon request, to each of the other Purchasers, as soon as available, a copy of each periodic or current report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act or distributed by the Company to its shareholders. During the period of 1934two years after the Closing Date, the Company will, upon request, furnish to the Representatives, each of the other Purchasers and any holder of Offered Securities or Common Stock issuable upon conversion thereof a copy of the restrictions on transfer applicable to the Offered Securities or Common Stock issuable upon conversion thereof. During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as amended defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities or Common Stock issuable upon conversion thereof that have been reacquired by any of them. During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act. Any information provided by the Company to publishers of publicly available databases about the terms of the Offered Securities shall include a statement that the Offered Securities have not been registered under the Securities Act and are subject to restrictions under Rule 144A under the Securities Act and Regulation S. The Company will reserve and keep available at all times, free of preemptive rights, the full number of shares of Common Stock issuable upon conversion of the Offered Securities. The Company will not for a period of 90 days following the date and time that this Agreement is executed and delivered by the parties hereto (the "Exchange ActExecution Time"), without the prior written consent of each of the Representatives, offer, sell, contract to sell, pledge or mailed 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 stockholderscash settlement or otherwise) by the Company or any Affiliate (as such term is defined in Rule 501(b) of Regulation D) of the Company or any person in privity with the Company or any Affiliate of the Company), directly or indirectly, or file (or participate 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 Exchange Act and the rules and regulations of the Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction; provided, however, that (i) the Company may issue and sell Common Stock pursuant to any employee stock option plan, stock ownership or purchase plan or dividend reinvestment plan of the Company in effect at the Execution Time, (ii) from time to time, such other information concerning the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time, (iii) the Company may file registration statements pursuant to the Registration Rights Agreement and may issue Common Stock upon conversion of the Offered Securities and (iv) the Company may purchase call spread repurchase options pursuant to the Issuer Call Spread Transactions. The Company will refuse, and will cause all applicable trustees and transfer agents to refuse, to register any transfer of Offered Securities or shares of Common Stock issuable upon conversion of Offered Securities if such transfer is not made in accordance with the provisions of Regulation S under the Securities Act, pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from the registration requirements of the Securities Act; provided that the provisions of this paragraph shall not be applicable to any Offered Security or share of Common Stock which has been transferred pursuant to an effective registration statement or Rule 144 under the Securities Act and, as a result of which, or otherwise, is no longer subject to restrictions on transfer under the Representatives Securities Act. All of the Offered Securities and shares of Common Stock issuable upon conversion thereof will contain a legend to the effect that the transfer thereof is prohibited except in accordance with the provisions of Regulation S, pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from registration under the Securities Act and that hedging transactions involving those Offered Securities or shares may reasonably request.
(h) not be conducted unless in compliance with the Securities Act; provided that such legend may be removed if such Offered Securities or shares have been transferred pursuant to an effective registration statement or Rule 144 under the Securities Act, and, as a result of which, or otherwise, is no longer subject to restrictions on transfer under the Securities Act. Between the date hereof and the Closing Date, the Company will not do or authorize any act or thing that would result in an adjustment of the conversion price. The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Registration Rights Agreement, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States as the Representatives may reasonably designate and the printing of memoranda relating thereto, thereto (v) for any fees charged by investment rating agencies for the rating of the Securities and Offered Securities, (vi) for expenses incurred in distributing preliminary offering circulars and the Prospectus, Offering Document (including any preliminary prospectuses amendments and supplements thereto) to the Purchasers and (vii) for expenses incurred in connection with admitting the Offered Securities for trading in the PORTAL Market. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution other expenses of the Terms Agreement Purchasers and ending one business day after the Closing DateCompany in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers. Notwithstanding the foregoing, the Purchasers shall reimburse the Company will not, without for certain expenses incurred in connection with the prior consent offering and sale of the RepresentativesOffered Securities, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by extent separately agreed between the Company and having the Purchasers. In connection with the offering, until the Representatives shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates 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 affiliates has a maturity beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of more than one year from its affiliates will make bids or purchases for the date purpose of issue.creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities. Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf will engage in any directed selling efforts with respect to the Securities, 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.
Appears in 1 contract
Samples: Purchase Agreement (Computer Associates International Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters Underwriter that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the UnderwritersUnderwriter, one conformed copy of the Registration Statementregistration statement relating to the Offered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of the Offered Securities:
(a) The Company will prepare the Prospectus in a form approved by the Underwriter and file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2424(b) (or, if applicable and if consented to by within the Representatives, time prescribed under Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on not effect any such proposed amendment or supplement; supplementation to which CSFB has reasonably objected in writing, and the Company will also advise the Representatives Underwriter promptly of the filing of any such amendment or supplement supplement; PROVIDED, HOWEVER, that the foregoing shall not apply to any of the Company's periodic filings with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act; and the Company will also advise the Underwriter promptly of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by the Underwriter or any dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Underwriter of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriter's consent to, nor the Underwriters' Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not Not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Underwriter copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Underwriter reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriter all such documents.
(f) The Company will arrange for use its best efforts, in cooperation with the qualification of Underwriter, to qualify the Offered Securities for sale and the determination of to determine their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, howeverPROVIDED, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualifiedsubject.
(g) During the period of five years after the date of any Terms this Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, Underwriter as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Underwriter (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Underwriter may reasonably request, subject to appropriate confidentiality undertakings reasonably satisfactory to the Company and the right of the Company to withhold information if required by applicable law.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for Indenture, including (i) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Prospectus and any amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities, (ii) any filing fees or other expenses (including fees and disbursements of counselcounsel to the Underwriter, which fees and disbursements shall not exceed $5,000) incurred by them in connection with qualification of the Registered Offered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate Underwriter designates and the printing of memoranda relating thereto; (iii) any applicable filing fee incident to the review by the National Association of Securities Dealers, for Inc. of the terms of the offering of the Offered Securities and the fees and disbursements of counsel to the Underwriter in connection therewith (which counsel fees shall be included in the cap set forth above), (iv) any fees charged by investment rating agencies for the rating of the Securities Offered Securities, and for (v) expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, or any preliminary prospectus supplements (including any amendments and supplements thereto) to Underwritersthe Underwriter.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Underwriter for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Underwriter, but in no event ending later than thirty (30) days from the Closing Date.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Firm Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Firm Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, or Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Baird promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Baird a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Baird promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Firm Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify Baird of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Xxxxx’x consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Firm Securities, (iiwhich will satisfy the provisions of Section 11(a) the effective date of the most recent post-Act. For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such effective amendment to date, except that, if such fourth quarter is the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission last quarter of the Company's most recent Annual Report on Form 10-K prior to ’s fiscal year, “Availability Date” means the date 90th day after the end of such Terms Agreementfourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are Baird reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Firm Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Baird designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees or other expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Firm Securities for sale under the laws of such jurisdictions as the Representatives Baird may reasonably designate and the printing preparation of memoranda relating theretothereto (provided that counsel fees in connection therewith do not exceed $5,000), for any fees charged applicable filing fee incident to, the review by investment rating agencies for the rating National Association of Securities Dealers, Inc. of the Firm Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Firm Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day 180 days after the Closing Datedate hereof, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, or publicly sold disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Baird, except (including i) issuances of Common Stock pursuant to Rule 144A the conversion or exchange of convertible or exchangeable securities or the Securities Act) United States dollar-denominated debt securities issued exercise of warrants or guaranteed by the Company and having a maturity of more than one year from options, in each case outstanding on the date of issuethis Agreement, (ii) grants of employee stock options pursuant to the terms of a plan in effect on the date of this Agreement and issuances of Common Stock pursuant to the exercise of such options, (iii) issuance of Common Stock to employees pursuant to the terms of a plan in effect on the date of this Agreement, (iv) filing a registration statement increasing the number of shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock available for grant or issuance under the terms of a plan in effect on the date of this Agreement, (v) filing a registration statement to register shares of Common Stock for use in connection with acquisitions, and (vi) issuances of Common Stock in connection with acquisitions and the filing of a registration statement to permit the resale of those shares of Common Stock.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it that:
(a) Prior to the termination of the Offering, the Company will furnish not file any amendment of the Registration Statement or supplement to Kirkxxxx & Xllixthe Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment, xxunsel supplement or Rule 462(b) Registration Statement to which the Representative reasonably objects. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for the Underwriters, one conformed copy any amendment of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(aany Rule 462(b) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Prospectus and will afford the Representatives a reasonable opportunity to comment on or for any such proposed amendment or supplement; and the Company will also advise the Representatives promptly additional information, (iv) of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any part thereof proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered 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 and or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible its liftingthe withdrawal of such stop order or relief from such occurrence or objection, including, if issuednecessary, 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.
(cb) If, at any time when a prospectus relating prior to the Securities is required filing of the Prospectus pursuant to be delivered under the ActRule 424(b), any event or development occurs as a result of which the Statutory Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, therein in the light of the circumstances under which they were mademade at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as the Representative may reasonably request.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it is shall be necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the ActAct or the rules thereunder, the Company promptly will (i) notify the Representative of any such event; (ii) prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 6, an amendment or supplement which that will correct such statement or omission or an amendment which will effect such compliance. Neither ; and (iii) supply any supplemented Prospectus to the Representatives' consent to, nor Representative in such quantities as the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5Representative may reasonably request.
(d) In order As soon as practicable, the Company will make generally available to comply with its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish not make any offer relating to the Representatives copies Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedAct.
(f) The Company will arrange furnish to the Representative and counsel for the qualification Underwriters, without charge, signed copies of the Securities for sale Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required for by the distribution; providedAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172), howeveras many copies of each Preliminary Prospectus, that the Prospectus and any supplement thereto as the Representative may reasonably request. The Company shall not be obligated will pay the expenses of printing or other production of all documents relating to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedthe Offering.
(g) During The Company will indemnify and hold harmless the period Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of five years after the date Offered Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any Terms Agreementpresent or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company will furnish to shall pay such additional amounts as may be necessary in order that the Representatives and, upon request, to each of net amounts received after such withholding or deduction shall equal the other Underwriters, amounts that would have been received if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K no withholding or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestdeduction had been made.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell sell, pledge or otherwise dispose of (or enter into any publicly sold transaction that is designed to, or might reasonably be expected to, result in the disposition (including pursuant whether by actual disposition or effective economic disposition due to Rule 144A of the Securities Actcash settlement or otherwise) United States dollar-denominated debt securities issued or guaranteed by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any other Units, Ordinary Shares, Warrants or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transaction during the period commencing on the date hereof and having ending 180 days after the date of this Agreement; provided, however, that the foregoing shall not apply to the forfeiture of a maturity portion of more than one year the Founder Shares pursuant to their terms and the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Optional Securities on exercise of the option provided for in Section 3 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with an initial Business Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180-day lock-up contained in the Insider Letter.
(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 Offered 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 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 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 and all other agreements or documents printed (or reproduced) and delivered in connection with the Offering; (v) the registration of the Offered Securities under the Exchange Act and the listing of the Offered Securities on the Nasdaq Capital Market; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Offered Securities for offer and sale under the securities or blue sky laws of the several states and 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, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not those incurred by or on behalf of the Underwriters) 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 U.S. and Cayman Islands counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(k) For a period commencing on the Effective Date and ending five (5) years from the date of issuethe consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares and Warrants under the provisions of the Exchange Act, except after giving effect to a going private transaction after the completion of an initial Business Combination. During such period, the Company will not deregister the Units, Ordinary Shares or Warrants under the Exchange Act (except in connection with a going private transaction after the completion of an initial Business Combination) without the prior written consent of the Representative.
(l) The Company shall, on the date hereof, retain its independent registered public accounting firm to audit the balance sheet of the Company as of the Closing Date (the “Audited Balance Sheet”) reflecting the receipt by the Company of the proceeds of the Offering on the Closing Date. As soon as the Audited Balance Sheet becomes available, the Company shall promptly, but not later than four (4) Business Days after the Closing Date, file a Current Report on Form 8-K with the Commission, which Current Report shall contain the Company’s Audited Balance Sheet. Additionally, upon the Company’s receipt of the proceeds from the exercise of all or any portion of the option provided for in Section 3 hereof, the Company shall promptly, but not later than four (4) Business Days after the receipt of such proceeds, file a Current Report on Form 8-K with the Commission, which report shall disclose the Company’s sale of the Optional Securities and its receipt of the proceeds therefrom, unless the receipt of such proceeds are reflected in the Current Report on Form 8-K referenced in the immediately prior sentence.
(m) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company, at its expense, shall cause its regularly engaged independent registered public accounting firm to review (but not audit) the Company’s financial statements for each of the first three (3) fiscal quarters prior to the announcement of quarterly financial information, the filing of the Company’s Form 10-Q quarterly report and the mailing, if any, of quarterly financial information to shareholders.
(n) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs, the Company shall, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, furnish to the Representative copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of securities, and, to the extent such information or documents are not otherwise publicly available, upon written request from the Representative, promptly furnish to the Representative: (i) a copy of such registration statements, financial statements and periodic and special reports as the Company shall be required to file with the Commission and from time to time furnishes generally to holders of any such class of its securities in their capacities as such; and (ii) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request, all subject to the execution of a satisfactory confidentiality agreement. Any registration statements, financial statements, periodic and special reports or other additional documents referred to in the preceding sentence filed or furnished on the Commission’s XXXXX website and publicly available will be considered furnished for the purposes of this Section 6.
(o) For a period commencing on the Effective Date and ending five (5) years from the date of the consummation of the Business Combination or until such earlier time at which the Liquidation occurs or the Ordinary Shares and Warrants cease to be publicly traded, the Company shall retain a transfer and warrant agent.
(p) The Company will not consummate an initial Business Combination with any entity that is affiliated with the Sponsor or any of the Company’s officers or directors unless it obtains an opinion from an independent investment banking firm, or from an independent accounting firm, that such Business Combination is fair to the Company from a financial point of view. Other than as set forth in this
Appears in 1 contract
Samples: Underwriting Agreement (Silver Spike Acquisition Corp.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five three years after the date of any Terms Agreementhereafter, the Company will furnish or make available to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Representative (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Representative may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees or other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Representative designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities Securities, and for expenses incurred in distributing preliminary prospectus supplements, and the Prospectus, Prospectus (including any preliminary prospectuses amendments and supplements thereto) to the Underwriters. The Company and the Underwriters will pay for their respective travel expenses and any preliminary prospectus supplements to Underwritersother expenses in connection with attending or hosting meetings with prospective purchasers of the Securities.
(i) For a period beginning at of 60 days after the time of execution date of the Terms Agreement and ending one business day after initial offering of the Closing DateSecurities, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional Securities or other debt securities, or publicly sold (including pursuant disclose the intention to Rule 144A make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueRepresentative.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters Underwriter that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the UnderwritersUnderwriter, one conformed signed copy of the Registration Statementregistration statement relating to the Offered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Underwriter a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Underwriter promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by the Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Underwriter of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriter's consent to, nor the Underwriters' Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Underwriter copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documentsdocuments by which the Offered Securities are offered, in each case as soon as available and in such quantities as are the Underwriter reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriter all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if anyUnderwriter, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Underwriter (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Underwriter designates and the printing of memoranda relating thereto, for any fees charged the filing fee incident to the review by investment rating agencies for the rating National Association of Securities Dealers, Inc. of the Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to Underwritersthe Underwriter.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day 30 days after the Closing Datedate hereof, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional Securities or securities convertible into or exchangeable or exercisable for any Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of any publicly sold the Underwriter, except (including i) grants of options to purchase Securities, restricted stock or other stock-based awards pursuant to Rule 144A of the Securities ActCompany's 2000 Equity Incentive Plan, existing and in effect on the date hereof; (ii) United States dollar-denominated debt securities issued or guaranteed the issuance by the Company of Securities pursuant to the 2000 Employee Stock Purchase Plan, existing and having a maturity of more than one year from in effect on the date hereof; (iii) the issuance by the Company of issueSecurities upon the exercise of stock options or upon the exercise or conversion of options, warrants or convertible securities of the Company, in each case, outstanding on the date hereof; and (iv) issuances of Securities pursuant to the Company's dividend reinvestment plan.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representativesapplicable, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus at any time and will afford offer the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs as a result of which the Prospectus Final Prospectus, as then amended or supplemented 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, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may from time to time reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will promptly from time to time take such action as any Underwriter may reasonably request to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate any Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state or province.
(g) During the a period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives and, upon request, to each of the other Underwriters (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other public information concerning the Company as the Representatives may reasonably request; provided, however, that any such document filed with the Commission that is publicly available in electronic form on the Commission’s XXXXX system or on the Company’s website shall not be provided.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under the Operative Documents, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and delivery of the Offered Securities, the preparation and printing of this Agreement Agreement, the Offered Securities, the Indenture, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Final Prospectus, all amendments and will reimburse supplements thereto, and any other document relating to the Underwriters for issuance, offer, sale and delivery of the Offered Securities; (iii) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate any Underwriter designates and the printing of memoranda relating thereto, for ; (iv) any fees charged by investment rating agencies for the rating of the Securities and for Offered Securities; (v) expenses incurred in distributing the Preliminary Prospectus, any preliminary prospectuses other documents comprising any part of the General Disclosure Package and the Final Prospectus (including any amendment and supplements thereto) to the Underwriters; (vi) costs and expenses related to the review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees and the fees and expenses of counsel for the Underwriters relating to such review); and (vii) all travel expenses of the Company’s officers and employees and any preliminary prospectus supplements to other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities. It is understood that, except as provided in this Section and in Sections 8 and 10 hereof, the Underwriters will pay for all travel expenses of the Underwriters’ employees and any other out-of-pocket expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) The Company will use the net proceeds received in connection with this offering in the manner described in the “Use of Proceeds” section of the Final Prospectus and in accordance with the covenants contained in the debt instruments described in the “Description of Our Other Indebtedness” section of the Final Prospectus and, except as disclosed in the Final Prospectus in compliance with Rule 2720 of the rules of FINRA, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(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, stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) For a period beginning at on the time of execution of the Terms Agreement date hereof and ending one business day 30 days after the Closing Date, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of of, directly or indirectly, or file with the Commission a registration statement under the Act relating to any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, without the prior written consent of Xxxxx Fargo Securities, LLC.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guaranties.
(n) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees and, as the case may be, the Trust agree with the several Underwriters that it they will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company and, as the case may be, the Trust will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesLead Underwriter, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company and, as the case may be, the Trust will advise the Representatives Lead Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Lead Underwriter a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company and, as the case may be, the Trust will also advise the Representatives Lead Underwriter promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and and, in the event of the issuance of any stop order, will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus Prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company and, as the case may be, the Trust promptly will notify the Lead Underwriter of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Lead Underwriter's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, practicable after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least but in no event later than 12 months beginning after the later of of: (i) the effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, the Company will make generally available to its securityholders an earnings statement which will satisfy the provisions of Section 11(a) of the Act (including, at the option of the Company, Rule 158 of the Rules and Regulations).
(e) The Company and, as the case may be, the Trust will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Lead Underwriter reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company and, as the case may be, the Trust will arrange for the qualification of the Offered Securities for sale and (if the Offered Securities are debt securities or Preferred Securities) the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Lead Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that in connection therewith the Company and, as the case may be, the Trust shall not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any jurisdiction or to qualify as a foreign corporation subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualifiedsubject.
(g) During the period of five years after period, if any, specified in the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; , and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company and, as the case may be, the Trust will pay all expenses incident to the performance of its their obligations under the Terms Agreement (including the provisions of this Agreement and will reimburse the Underwriters Agreement), for any filing fees or other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and (if the Offered Securities are debt securities or Preferred Securities) any determination of their eligibility for investment under the securities laws of such jurisdictions as the Representatives Lead Underwriter may reasonably designate and the printing of applicable "Blue Sky" memoranda relating theretothereto (including the related reasonable fees and disbursements of counsel to the Underwriters in connection therewith), for any fees charged by investment rating agencies for the rating of the Offered Securities (if they are debt securities or Preferred Securities), for any applicable filing fee incident to the review by the National Association of Securities Dealers, Inc. of the Registered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters; provided, however, that, except as otherwise provided herein, the Underwriters will pay their own costs and expenses, including costs and expenses of counsel, any transfer taxes on the Offered Securities that they sell and the expenses of advertising any offering of the Offered Securities made by the Underwriters, and the Company will pay the fees and expenses of its counsel and accountants, and any transfer taxes payable in connection with its sale of Offered Securities to the Underwriters.
(i) For a period beginning at If the time of execution of the Terms Agreement and ending one business day after the Closing DateOffered Securities are debt securities or Preferred Securities, the Company and, as the case may be, the Trust will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueissue (if the Offered Securities are debt securities) or any series of Preferred Securities issued or guaranteed by the Company (if the Offered Securities are Preferred Securities), without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date, if any, specified under "Blackout" in the Terms Agreement.
(j) If the Offered Securities are Common Stock or are convertible into Common Stock, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date, if any, specified under "Blackout" in the Terms Agreement, except for the Offered Securities and any issuances of Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date of the Terms Agreement, issuances of Common Stock pursuant to employee benefit plans, stock option plans, or other employee or director compensation plans, now or hereafter existing, issuances of Common Stock pursuant to the exercise of such options or issuances of Common Stock pursuant to a dividend reinvestment plan or direct access plan of the Company, and provided, however, that the Company may, without such consent, offer and sell Equity Securities of the Company in transactions exempt from the registration requirements of the Securities Act, provided that the purchasers in such transactions are prohibited from offering for sale, selling or otherwise disposing of, directly or indirectly, any of the Equity Securities of the Company so acquired by them for the remainder of such period.
Appears in 1 contract
Samples: Underwriting Agreement (Sunoco Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Agents that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives each Agent promptly of any proposal to amend or supplement the Prospectus or the Registration Statement or to register the Prospectus and will afford Program Securities under any registration statements other than the Representatives a reasonable opportunity Registration Statement referred to comment on in Section 2(a) above (other than any such proposed proposal for an amendment or supplement; supplement or additional registration statement that relates only to the offering and sale of securities other than the Program Securities or the offering and sale of Program Securities other than through such Agent). The Company will also advise the Representatives each Agent promptly of (i) the filing with the Commission of any such each amendment or supplement to the Prospectus or the Registration Statement and each such additional registration statement (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than the Program Securities or the offering and sale of Program Securities other than through such Agent), (ii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof such additional registration statement, and will use its best efforts to prevent the issuance of any such stop order and and, if such a stop order is issued, to obtain its lifting as soon as possible its lifting, if issuedand (iii) receipt by the Company of any notification with respect to the suspension of the qualification of the Program Securities for sale in any jurisdiction or the initiation or threat of any proceeding for that purpose.
(cb) If, at any time when a prospectus Prospectus relating to the Program Securities is required to be delivered under the Act, any event occurs shall occur as a result of which the Prospectus as then amended or supplemented would shall include an untrue statement of a material fact 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 is shall be necessary at any time to amend or supplement the Registration Statement or the Prospectus to comply with the Act, the Company will promptly will (i) notify each Agent to suspend the solicitation of offers to purchase the Program Securities and (ii) prepare and file with the Commission an amendment or supplement which that will correct such untrue statement or omission or an amendment which will effect such compliance. Neither .
(c) The Company agrees that it will not solicit or accept offers to purchase Program Securities from any Agent during any period when (i) the Representatives' consent toCompany shall have been advised by either Xxxxx’x Investors Services, nor Inc. or Standard & Poor’s Corporation that such organization has determined to downgrade the Underwriters' delivery ofrating of the Program Securities or any other debt obligations or any preferred stock of the Company and such downgrade shall not yet have been publicly announced, or (ii) there shall have occurred a material change in the financial condition or business of the Company and its subsidiaries, taken as a whole, and such event shall not have been disclosed in the Prospectus (directly or by incorporation by reference); provided, howevert, that the Company shall not be obligated to inform any such amendment Agent of the reason for, or supplement shall constitute a waiver describe the occurrence of any event that may have occasioned the need for, the suspension of the conditions set forth in Section 5its solicitation or acceptance of offers.
(d) In order Not later than 16 months after the date of each acceptance by the Company of an offer to comply with purchase Program Securities hereunder, the Company will make generally available to its security holders an earnings statement that will satisfy the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement Act and Rule 158 thereunder covering a period of at least 12 months beginning after the later last to occur of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement acceptance and (iii) the date of filing with the Commission Annual Report of the Company's most recent Annual Report Company on Form 10-K most recently filed with the Commission prior to the date of such Terms Agreementacceptance.
(e) The Company will furnish to the Representatives each Agent copies of the Prospectus and of the Registration StatementStatement (including the exhibits thereto relating to the offering by the Company thereunder of the Program Securities, including all exhibitsbut excluding the documents incorporated by reference), any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to the Prospectus and the Registration Statement and all additional registration statements pursuant to which any of the Program Securities may be registered (other than any amendment, supplement or additional registration statement that relates only to the offering and sale of securities other than Program Securities or any pricing supplement relating to the offering and sale of Program Securities other than through such documentsAgent), in each case as soon as available and in such quantities as are shall be reasonably requested. The Company will prepare, with respect to any Program Securities to be sold through or to the Agents a pricing supplement with respect to such Program Securities (the “Pricing Supplement”) and will file such Pricing Supplement with the Commission pursuant to Rule 424(b) under the Securities Act not later than the time specified by such rule.
(f) The Company will arrange for the qualification of the Program Securities for sale sale, if any, and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably Agents designate and will continue such qualifications in effect so long as required for the distributiondistribution of the Program Securities; provided, however, that in connection therewith the Company shall not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During At any time when a Prospectus is required to be delivered under the period of five years after Act, and if not publicly available through the date of any Terms AgreementCommission’s website, the Company will furnish to the Representatives andeach Agent, upon request, to each of the other Underwriters, if any, (i) as soon as practicable after the end of each fiscal year, a copy the number of copies reasonably requested by such Agent of its annual report to stockholders for such year; and the Company will furnish to the Representatives , (iii) as soon as available, a copy the number of copies reasonably requested by such Agent of each report (including without limitation reports on Form Forms 10-K or K, 10-Q and 8-K) or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("the “Exchange Act"”), or mailed to stockholders, stockholders and (iiiii) from time to time, such other information concerning the Company as the Representatives such Agent may reasonably request. The Company also will furnish each Agent with copies of any press release or general announcement to the general public, in each case upon request by the Agent.
(h) The Company will will, whether or not any sale of Program Securities is consummated, pay all expenses incident to the performance of its obligations under this Agreement and any Terms Agreement and the reasonable fees and disbursements of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, in connection with the offering and sale of the Program Securities and will reimburse the Underwriters each Agent for any expenses (including fees and disbursements of counsel) incurred by them it in connection with the qualification of the Registered Program Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives such Agent may reasonably designate and the printing of memoranda relating thereto, thereto and for any fees charged by investment rating agencies for the rating of the Program Securities. The Company will determine with the Agents the amount of advertising, if any, appropriate in connection with the solicitation of offers to purchase Program Securities and for will pay, or reimburse the Agents for, all advertising expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwritersapproved by it.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives CSFBC promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives CSFBC a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives CSFBC promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify CSFBC of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' CSFBC's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are CSFBC reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate CSFBC designates and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedjurisdiction.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate CSFBC designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFBC for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file advise you, as the Prospectus with representatives (the Commission pursuant to and in accordance with Rule 424(b)(2"REPRESENTATIVES") (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives several Purchasers, promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Offering Document and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and supplementation without the consent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Representatives. If, at any time when a prospectus relating prior to the completion of the resale of the Offered Securities is required to be delivered under by the ActPurchasers, any event occurs as a result of which the Prospectus Offering Document 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' consent to, nor the UnderwritersPurchasers' delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementoffering memorandum, the Prospectus Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives reasonably requestedrequest, and the Company will furnish to the Representatives on the date hereof three copies of the Offering Document signed by a duly authorized officer of the Company, one of which will include the independent accountants' reports therein manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representatives and, upon request, to each of the other Purchasers) and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; providedresale of the Offered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state.
(gd) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish or make generally available to the Representatives and, upon request, to each of the other UnderwritersPurchasers, if anypromptly upon their becoming available, as soon as practicable after the end copies of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K all reports or 10-Q or definitive proxy statement of other publicly available information that the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), shall mail or mailed otherwise make available to stockholders, its public stockholders and (ii) from time to timeall reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange and such other publicly available information concerning the Company and its subsidiaries including, without limitation, press releases, as the Representatives Purchasers may reasonably request.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representatives, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate referred to in paragraph (c) above, and the printing of memoranda relating thereto, (v) for any fees charged by investment rating agencies for the rating of the Securities or the Exchange Securities, and (vi) for expenses incurred in distributing preliminary offering memorandums and the Prospectus, Offering Document (including any preliminary prospectuses amendments and supplements thereto) to the Purchasers. The Company will also pay or reimburse the Purchasers (to the extent incurred by them) for all travel expenses of the Purchasers and the Company's officers and employees and any preliminary prospectus supplements to Underwritersother expenses of the Purchasers and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFB shall have notified the Company and the other Purchasers of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates 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 affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period beginning at of 90 days after the time of execution date of the Terms Agreement and ending one business day after initial offering of the Closing DateOffered Securities by the Purchasers, neither the Company nor the Guarantors will not, without the prior consent of the Representatives, offer, sell, contract to sell sell, pledge or otherwise dispose of of, directly or indirectly, any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueissue without the prior written consent of the Representatives. Neither the Company nor any Guarantor will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus Final Prospectus, properly completed, with the Commission pursuant to and in accordance with Rule 424(b)(2subparagraph (2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not of Rule 424(b) no later than the second business day following the execution and delivery date it is first used. The Company will advise the Representative promptly of the Terms Agreementany such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly Representative promptly, in writing, of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Representative’s reasonable consent; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission (subject to the Representative’s prior review pursuant to Section 5(b)), at its own expense, an amendment or supplement which will correct such statement or omission omission, or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' Underwriters delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order The Company will cause the Trust to comply with the provisions of Section 11(a) of the Act, the Company willmake generally available to Noteholders, as soon as practicable, but not no later than 16 months, sixteen months after the date of each Terms Agreementhereof, make generally available to its securityholders an earnings statement of the Trust covering a period of at least 12 twelve consecutive months beginning after the later of (i) the effective date of the Registration Statement, registration statement relating to the Notes and (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iiiand, in each case, satisfying the provisions of Section 11(a) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementAct (including Rule 158 promulgated thereunder).
(e) The Company will furnish to the Representatives Underwriters copies of each Prospectus, the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus Statement and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Final Prospectus shall be furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other such documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities Notes for offering and sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall Representative may reasonably designate and will continue such qualifications in effect so long as required for the distributiondistribution of the Notes; provided, however, provided that in connection therewith the Company shall not be obligated required to qualify as a foreign corporation to do business or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During the For a period of five years after from the date of any Terms Agreement, this Agreement until the retirement of the Notes (i) the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anycopies of each certificate and the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Sections 3.10 and 3.11 of the Sale and Servicing Agreement and the annual independent certified public accountant’s servicing reports furnished to the Trust pursuant to Section 3.12 of the Sale and Servicing Agreement, by first-class mail as soon as practicable after such statements and reports are furnished to the end Indenture Trustee or the Trust, as the case may be, and (ii) such other forms of each fiscal yearperiodic certificates or reports as may be delivered to the Indenture Trustee, a copy of its annual report to stockholders for such year; the Owner Trustee or the Noteholders under the Indenture, the Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish to the Representatives Representative by first-class mail as soon as practicable, (i) as soon as availableall documents distributed, a copy or caused to be distributed, by the Company to the Noteholders, (ii) all documents filed or caused to be filed by the Company with the Commission pursuant to the Exchange Act or any order of each report on Form 10-K or 10-Q or definitive proxy statement the Commission thereunder and (iii) such other information in the possession of the Company filed with concerning the Commission under Trust as the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) Representative from time to time, such other information concerning the Company as the Representatives time may reasonably request.
(hi) The Subject to the provisions of Section 10 hereof, the Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters (if and to the extent incurred by them) for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities Notes for sale in jurisdictions that the Representative may designate pursuant to Section 5(f) hereof and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may Representative reasonably designate designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities Notes, for any travel expenses of the officers and employees of the Underwriters and any other expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Notes and for expenses incurred in distributing the Prospectus, Prospectus (including any preliminary prospectuses amendments and any preliminary prospectus supplements to Underwritersthereto).
(ij) For To the extent, if any, that the rating provided with respect to the Notes by Xxxxx’x Investors Service, Inc. (“Moody’s”), Standard & Poor’s, a period beginning at division of The XxXxxx-Xxxx Companies, Inc. (“Standard & Poor’s”), or Fitch Ratings (“Fitch” and, together with Standard & Poor’s and Moody’s, the time “Rating Agencies”) is conditional upon the furnishing of execution documents or the taking of any other action by the Terms Agreement Company, the Company shall furnish such documents and ending one business day after take any such other action.
(k) On or before the Closing Date, the Company will not, without and AHFC shall annotate and indicate unambiguously in the prior consent computer records of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity AHFC relating to the Receivables to show the Trust’s absolute ownership of more the Receivables, and from and after the Closing Date neither the Company nor AHFC shall take any action inconsistent with the Trust’s ownership of such Receivables, other than one year from as permitted by the date of issueSale and Servicing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (American Honda Receivables Corp)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representativesapplicable, Rule 424(b)(5subparagraph (5)) not later than the second business day following the earlier of the date it is first used or the execution and delivery of the Terms this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus at any time and will afford offer the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Representative promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct by any Underwriter or dealer, any event occurs as a result of which the Prospectus Final Prospectus, as then amended or supplemented 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, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission and furnish, at its own expense, to the Underwriters and the dealers and any other dealers upon request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative may from time to time reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will promptly from time to time take such action as any Underwriter may reasonably request to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate any Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state or province.
(g) During the a period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other public information concerning the Company as the Representatives Representative may reasonably request; provided, however, that any such document filed with the Commission that is publicly available in electronic form on the Commission’s XXXXX system or on the Company’s website shall not be provided.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under the Operative Documents and the Notes Collateral Documents, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and delivery of the Offered Securities, the preparation and printing of this Agreement Agreement, the Offered Securities, the Indenture, the Preliminary Prospectus, any other documents comprising any part of the General Disclosure Package, the Final Prospectus, all amendments and will reimburse supplements thereto, and any other document relating to the Underwriters for issuance, offer, sale and delivery of the Offered Securities; (iii) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate any Underwriter designates and the printing of memoranda relating thereto, for ; (iv) any fees charged by investment rating agencies for the rating of the Securities and for Offered Securities; (v) expenses incurred in distributing the Preliminary Prospectus, any preliminary prospectuses other documents comprising any part of the General Disclosure Package and the Final Prospectus (including any amendment and supplements thereto) to the Underwriters; (vi) costs and expenses related to the review by the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Offered Securities (including filing fees and the fees and expenses of counsel for the Underwriters relating to such review); (vii) all fees and expenses incurred in connection with the perfection of a security interest in the Collateral, including all filing fees, taxes and other amounts payable in connection therewith, including reasonable fees and expenses of the Underwriters’ counsel; and (viii) all travel expenses of the Company’s officers and employees and any preliminary prospectus supplements to other expenses of the Company in connection with attending meetings with prospective purchasers of the Offered Securities. It is understood that, except as provided in this Section and in Sections 9 and 12 hereof, the Underwriters will pay for all travel expenses of the Underwriters’ employees and any other out-of-pocket expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, the fees of their counsel, transfer taxes on the resale of any of the Offered Securities by them and any advertising expenses connected with any offers they make.
(i) For a period beginning at The Company will use the time net proceeds received in connection with this offering in the manner described in the “Use of execution Proceeds” section of the Terms Agreement Final Prospectus and ending one business day after in accordance with the Closing Datecovenants contained in the debt instruments described in the “Description of Our Other Indebtedness” section of the Final Prospectus and, except as disclosed in the Final Prospectus in compliance with Rule 5121 of the rules of FINRA, the Company does not intend to use any of the proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(j) The Company will notnot 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 securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) During the period of 30 days following the date hereof, Holdings will not and will not permit any of its subsidiaries to, without the prior written consent of the RepresentativesRepresentative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell, offer, contract or grant any option to sell, contract to sell pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any publicly sold (including pursuant to Rule 144A of registration statement under the Securities Act) Act in respect of, any United States dollar-denominated debt securities that are substantially similar to the Offered Securities and are issued or guaranteed by the Company or guaranteed by Holdings, and having a maturity of more than one year from the date of issue, other than the Senior Notes.
(l) The Company will obtain the approval of DTC for “book-entry” transfer of the Offered Securities, and will comply with all of its agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer.
(m) After the Closing Date, the Company and each Guarantor shall take all actions necessary to maintain the security interests in the Collateral and to perfect such security interests in any Collateral acquired after the Closing Date, in each case as and to the extent contemplated by the Indenture and the Notes Collateral Documents.
(n) The Company will not voluntarily claim, and will actively resist any attempts to claim, the benefit of any usury laws against the holders of any Notes and the related Guaranties.
(o) The Company will use its reasonable best efforts to do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date and to satisfy all conditions precedent to the delivery of the Offered Securities.
Appears in 1 contract
Samples: Underwriting Agreement (United Rentals North America Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that should the Registration Statement be unavailable for free on EDXXX xn the SEC website it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, Underwriters one conformed signed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of the Offered Securities:
(a) The Company will file the Final Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2424(b) (or, if applicable and if consented to by of the Representatives, Rule 424(b)(5)) Act not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Base Prospectus at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172) and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172) in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were mademade at such time, not misleading, or if it is necessary at any time to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the ActAct or the Exchange Act or the respective rules thereunder, including in connection with the use or delivery of the Final Prospectus, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement or new registration statement which will correct such statement or omission or an amendment which will effect such compliance, and supply any amended or supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order If, at any time prior to comply with the provisions of Section 11(a) filing of the ActFinal Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances then prevailing not misleading, the Company will, will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(e) As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date Effective Date of the Registration StatementStatement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(ef) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Final Prospectus and each Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(fg) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedjurisdiction.
(gh) The Company will prepare a final term sheet, containing solely a description of the Offered Securities, in a form approved by the Representatives (the “Final Term Sheet”) and will file the Final Term Sheet pursuant to Rule 433(d) under the Act within the time required by such rule. The Final Term Sheet shall constitute an Issuer Free Writing Prospectus hereunder.
(i) The Company represents and agrees that, unless it has obtained or will obtain the prior written consent of the Representatives, and each Underwriter, severally and not jointly, represents and 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 Offered Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a Free Writing Prospectus required to be filed by the Company with the Commission, other than 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 included in Schedule B hereto (if any). Any Issuer 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 it (x) has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (y) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Act) that was not included (including through incorporation by reference) in the Final Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule II, or (iii) (x) information describing the preliminary terms of the Offered Securities or their offering or (y) information that describes the final terms of the Offered Securities or their offering and that is included in the Final Term Sheet.
(j) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hk) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Disclosure Package and the Final Prospectus, any preliminary prospectuses and prospectus, any preliminary prospectus supplement or any other amendments or supplements to the Disclosure Package and the Final Prospectus to the Underwriters.
(il) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix_____________________, xxunsel counsel for the UnderwritersUnderwriters ("Underwriter's Counsel"), one conformed signed copy of the Registration Statementregistration statement relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During the time when a prospectus relating to the Securities is required to be delivered under the Act, (i) the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; supplement and (ii) the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order The Company will make generally available to comply with the provisions of Section 11(a) of the Act, the Company will, its security holders as soon as practicable, but in any event not later than 16 months, eighteen months after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Act), (ii) the effective date an earnings statement of the most recent post-effective amendment to Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Registration Statement to become effective prior to Act and the date of such Terms Agreement Rules and Regulations (iii) including, at the date of filing with the Commission option of the Company's most recent Annual Report on Form 10-K prior to , Rule 158 under the date of such Terms AgreementAct).
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, supplement and the Prospectus and and, during the time when a prospectus relating to the Registered Securities is required to be delivered under the Act, all amendments and supplements to such documentsdocuments (other than those solely relating to securities other than the Securities), in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in no event shall the Company shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as a dealer in securities or to file a general or unlimited consent for service of process in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During The Company will pay or cause to be paid the period following: (i) the fees, disbursements and expenses of five years after the date Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus supplement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing any Agreement among Underwriters, this Agreement, any Terms Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the Company will furnish to the Representatives andoffering, upon requestpurchase, to each sale and delivery of the other UnderwritersSecurities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 4(f), if anyincluding the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, as soon as practicable after Inc. of the end terms of each fiscal year, a copy the sale of its annual report to stockholders the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for such yearany Trustee in connection with any Indenture and the Securities; and the Company will furnish to the Representatives (iviii) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, all other costs and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations hereunder and under any Delayed Delivery Contracts which are not otherwise specifically provided for in this Agreement Section; provided, however, that, except as provided in this Section, Section 6 and will reimburse Section 8 hereof, the Underwriters for will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectusby them, any preliminary prospectuses and any preliminary prospectus supplements to Underwritersadvertising expenses connected with any offers they may make.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the earlier of (i) the termination of trading restrictions for the Securities, as notified to the Company by the Representatives, and (ii) the Closing Date, the Company will not, without the prior consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant securities substantially similar to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueSecurities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During the time when a prospectus relating to the Offered Securities is required to be delivered under the Act, (i) the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; , and (ii) the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issuedissued and (iii) the Company will advise the Representatives promptly of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order The Company will make generally available to comply with the provisions of Section 11(a) of the Act, the Company will, its security holders as soon as practicable, but in any event not later than 16 months, eighteen months after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Act), (ii) the effective date an earnings statement of the most recent post-effective amendment to Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Registration Statement to become effective prior to Act and the date of such Terms Agreement Rules and Regulations (iii) including, at the date of filing with the Commission option of the Company's most recent Annual Report on Form 10-K prior to , Rule 158 under the date of such Terms AgreementAct).
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, supplement and the Prospectus and during the time when a prospectus relating to the Offered Securities is required to be delivered under the Act, all amendments and supplements to such documentsdocuments (other than those solely relating to securities other than the Offered Securities), in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus supplement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing any Agreement among Underwriters, this Agreement, any Terms Agreement, any Certificate of Designations, any Deposit Agreement, any Warrant Agreement, any Blue Sky Memorandum and any other documents in connection with the offering, purchase, sale and delivery of the Offered Securities; (iii) all expenses in connection with the qualification of the Offered Securities for offering and sale under state securities laws as provided in Section 4(f), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey1; (iv) any fees charged by securities rating services for rating the Offered Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Offered Securities; (vi) the cost of preparing the Offered Securities and any Common Shares issuable upon conversion or exercise thereof; (vii) the fees and expenses in connection with the listing, if any, of the Offered Securities or any Common Shares issuable upon conversion or exercise thereof; (viii) the fees and expenses of any transfer agent relating to any Common Shares or any Preferred Shares; (ix) the fees and expenses of any Depositary relating to any Depositary Shares; (x) the fees and expenses of any Warrant Agent relating to any Warrants; and (xi) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; provided, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Securities by them, and any advertising expenses connected with any offers they may make.
(g) If and to the extent so provided in the Terms Agreement referred to in Section 3, the Company, for the period therein provided, will not, directly or indirectly, sell, contract to sell or otherwise dispose of certain of its securities as specified in such Terms Agreement.
(h) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in no event shall the Company shall not be obligated to file any general consent to service of process or required to qualify as a foreign ---------- 1 Include language in italics if warrants are being sold; delete if shares of Common Stock or Preferred Stock are being sold. corporation or as a dealer in securities or to take any action that would subject it to general or unlimited service of process in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.jurisdiction.2
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Representative a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Representative (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Representative may reasonably request.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement and will reimburse the Underwriters for Indenture, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and the preparation and printing of this Agreement, the Offered Securities, the Indenture and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the transportation and other expenses incurred by or on behalf of any representative of the Company in connection with presentations to prospective purchasers of the Offered Securities in connection with the issue of the Offered Securities; (iv) any filing fees or expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Representative designates and the printing of memoranda relating thereto, for ; (v) any fees charged by investment rating agencies for the rating of the Securities and for Offered Securities; (vi) expenses incurred in printing and distributing the Prospectus, all amendments or supplements to any preliminary prospectuses of them and any related preliminary prospectus supplements (including any amendments and supplements thereto) to the Underwriters; (vii) the fees and expenses of the Company's accountants and other experts or advisors retained by the Company and the fees and expenses of counsel (including local and special counsel) for the Company; and (viii) all other costs and expenses incident to the performance by the Company of its obligations hereunder. The Company will also pay or reimburse the Underwriters (to the extent incurred by them) for all travel expenses of the Underwriters and the Company's officers and employees and any other expenses of the Underwriters and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant to Rule 144A of of, directly or indirectly, or file with the Securities Act) United States dollar-denominated Commission a registration statement under the Act relating to, debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without prior written consent of the Representative for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representative.
(j) The Company will use the net proceeds received by it from the sale of the Offered Securities solely in the manner specified in the Prospectus under the caption "Use of Proceeds".
(k) The Company shall pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Offered Securities or the sale thereof to the Underwriters.
(l) The Company will not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, 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 Offered Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Ferro Corp)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus Supplement with the Commission pursuant to and in accordance with Rule 424(b)(2) (or424(b)(5), if applicable and if consented as agreed to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery Underwriters based on its review of drafts of the Terms AgreementProspectus Supplement.
(b) The Company will advise the Representatives Underwriters promptly of any proposal to amend or supplement the Registration Statement as filed or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Underwriters’ consent, not to be withheld unreasonably; and, if at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective, the Company will also endeavor to cause such post-effective amendment to become effective as soon as possible Credit Suisse First Boston LLC and RBC Capital Markets Corporation June 1, 2005 Page 12 and will advise the Representatives Underwriters promptly of the filing effectiveness of such post-effective amendment and of any such request by the Commission for amendment or supplement and supplementation of a Registration Statement or the Prospectus or of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and Statement. The Company will use its good faith reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by the Underwriters or dealers, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Underwriters of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriters’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, practicable but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date Effective Date of the Registration Statement (or, if later, the Effective Date of any Additional Registration Statement, (ii) which will satisfy the effective date provisions of Section 11(a) of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementAct.
(e) The Company will furnish to the Representatives Underwriters copies of the each Registration StatementStatement (two of which will include copies of original signature pages and all exhibits thereto), including all exhibits, any each related preliminary prospectus, any related preliminary and, so long as a prospectus supplementrelating to the Offered Securities is required to be delivered under the Act in connection with sales by the Underwriters or dealers, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Underwriters request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the later of the execution and delivery of this Agreement or the filing of the Prospectus Supplement under Rule 424. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably Underwriters designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that in no event shall the Company shall not be obligated to file qualify to do business in any general consent jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits other than those arising out of the offering or to qualify as a foreign corporation sale of the Offered Securities, in any jurisdiction in which where it is not so qualified.now subject. Credit Suisse First Boston LLC and RBC Capital Markets Corporation June 1, 2005 Page 13
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Underwriters (i) as soon as availableavailable during the first year after this Agreement, and upon request during the second through fifth years after this Agreement, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Underwriters may reasonably request.
(h) The Company and the Partnership will pay all expenses incident to the performance of its their obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably Underwriters designate and the printing of memoranda relating thereto, for any fees charged the filing fee incident to the review by investment rating agencies for the rating National Association of Securities Dealers, Inc. of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and the Prospectus (including any preliminary prospectus amendments and supplements thereto) to the Underwriters.
(i) For a period beginning at of 45 days after the time of execution date of the Terms Agreement and ending one business day after public offering of the Closing DateOffered Securities, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its beneficial interest or securities convertible into or exchangeable or exercisable for any shares of its beneficial interest, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Underwriters, except for (i) issuances of Common Shares pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, (ii) grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, (iii) issuances of Common Shares pursuant to the exercise of such options or the exercise of any publicly sold other employee stock options outstanding on the date hereof, (including pursuant to Rule 144A iv) issuances of Common Shares upon the Securities Actvesting of phantom shares or other awards under the Company’s equity incentive plan; (v) United States dollar-denominated debt securities issued or guaranteed by issuances of shares of beneficial interest of the Company and having Partnership Units in connection with the acquisition of Properties and in connection with joint ventures and similar arrangements, so long as the recipients agree not to sell or transfer the shares of beneficial interest of the Company or Partnership Units for a maturity period of more than one year from 45 days after the date of issuethe public offering the Offered Securities without the prior written consent of the Underwriters, (vi) the filing of registration statements on Form S-3 with the Commission registering for resale Common Shares to be issued upon redemption of Partnership Units (other than Partnership Units held by the Company) for Common Shares in accordance with the Company’s customary practices, (vii) issuances, for no consideration, of no more than 100 shares to one or more persons unaffiliated with the Company and the Partnership as door or drawing Credit Suisse First Boston LLC and RBC Capital Markets Corporation June 1, 2005 Page 14 prizes in connection with the Company’s marketing efforts, or (viii) issuances of Common Shares pursuant to the Company’s dividend reinvestment and share purchase plan.
(j) The Company and the Partnership will use the net proceeds received from the sale of the Offered Securities in the manner specified in the Prospectus under the caption “Use of Proceeds”.
(k) The Company, the Partnership and any of their subsidiaries have not taken, and will not take, directly or indirectly, any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Common Shares or to facilitate the offer and sale of the Offered Securities in violation of Regulation M.
(l) The Company will use its best efforts to maintain the uninterrupted quotation of the Company’s Common Shares on the Nasdaq National Market, or in lieu thereof, on the New York Stock Exchange.
(m) Until such time, if any, as the Company determines to revoke its election to be taxed as a real estate investment trust under the Code and such determination is approved by the Company’s shareholders in accordance with the terms of the Company’s Declaration of Trust, the Company and the Partnership will use their best efforts to (i) meet the requirements to qualify as a real estate investment trust under the Code, and (ii) to cause each of their subsidiaries that is organized as a partnership to be treated as a partnership for federal income tax purposes.
(n) The Company and the Partnership will conduct their affairs in such a manner so as to ensure that neither the Company, the Partnership nor any subsidiary will be deemed to be an “investment company” or an entity “controlled” by an investment company within the meaning of the 1940 Act.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company has filed or will file each Statutory Prospectus (including the Prospectus with the Commission Final Prospectus) pursuant to and in accordance with Rule 424(b)(1) or Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesRepresentatives (which shall not be unreasonably withheld), Rule 424(b)(5subparagraph (3), (4) or (5)) not later than the second business day following the execution and delivery earlier of the Terms date it is first used or the date of this Agreement. The Company has complied and will comply with Rule 433.
(b) The Company will promptly advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Statutory Prospectus with respect to the Prospectus Offered Shares at any time and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplementsupplement and will not file any such proposed amendment or supplement to which the Representatives reasonably object; and the Company will also advise the Representatives promptly of (i) the filing of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to any Registration Statement, for any supplement and of to any Statutory Prospectus or for any additional information, in each case with respect to the Offered Shares, (iii) the institution by the Commission of any stop order proceedings in respect of the Registration Statement or the threatening of any part thereof proceeding for that purpose, and (iv) the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Shares in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order and or the suspension of any such qualification and, if issued, to obtain as soon as possible its lifting, if issuedthe withdrawal thereof.
(c) If, at any time when a prospectus relating to the Securities Offered Shares is (or but for the exemption in Rule 172 would be) required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Registration Statement or the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of this Agreement and satisfying the Registration Statement, (iiprovisions of Section 11(a) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including Statement (one of which will be signed and will include all exhibitsexhibits and documents incorporated by reference), any related preliminary prospectus, any related preliminary prospectus supplementStatutory Prospectus relating to the Offered Shares, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities Offered Shares for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distributiondistribution of the Offered Shares; providedprovided that, howeverin connection therewith, that the Company shall not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any jurisdiction or to qualify as a foreign corporation subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualifiedsubject.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish or make available to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish or make available to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) For the period specified below (the “Lock-Up Period”), the Company will not offer, sell, contract to sell, pledge, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Act (other than a registration statement on Form S-8 or any successor form in connection with the registration of securities pursuant to any equity compensation plan of the Company (a “Plan”) relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated and UBS Securities LLC, except with respect to Common Stock issued or issuable pursuant to stock options outstanding on the date hereof and Common Stock and other stock-based awards issued or issuable pursuant to the terms of a Plan. Moreover, the Company will not enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction is to be settled by delivery of Common Stock, in cash or otherwise. The initial Lock-Up Period will commence on the date hereof and will continue and include the date 90 days after the date hereof or such earlier date that the Representatives consent to in writing; provided, however, that if (1) during the last 17 days of the initial Lock-Up Period, the Company releases earnings results or material news or a material event relating to the Company occurs or (2) prior to the expiration of the initial Lock-Up Period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the expiration of the 18-day period beginning on the date of release of the earnings results or the occurrence of the material news or material event, as applicable, unless the Representatives waive, in writing, such extension. The Company will provide the Representatives with notice of any announcement described in clause (2) of the preceding sentence that gives rise to an extension of the Lock-Up Period.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees with the several Underwriters that that the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Offered Shares under the Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any Statutory Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Offered Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Offered Shares under state securities laws and all expenses in connection with the qualification of the Offered Shares for offer and sale under state securities laws as provided in Section 5(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority, (v) all costs and expenses incident to listing the Offered Shares on the NASDAQ Global Select Market, (vi) the cost of printing certificates representing the Offered Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Offered Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement and will reimburse (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 and Section 10 below, the Underwriters for any expenses (will pay all of their costs and expenses, including fees and disbursements of their counsel) incurred , stock transfer taxes payable on resale of any of the Shares by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwritersadvertising expenses connected with any offers they may make.
(ij) For a period beginning at the time of execution The Company hereby agrees not to 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 Terms Agreement and ending one business day after the Closing Date, price of any securities of the Company will not, without to facilitate the prior consent sale or resale of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueOffered Shares.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of Registered Securities:
(a) The Company will timely file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented 424(b); the Company will advise you promptly of any such filing pursuant to by Rule 424(b); the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing and effectiveness of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued; the Company will advise the Representatives 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, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or to its knowledge the threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information.
(b) The Company will prepare a final term sheet, containing a description of the Registered Securities, in a form approved by the Representatives, and file such term sheet pursuant to Rule 433(d) under the Act within the time period prescribed by such Rule.
(c) The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities.
(d) The Company 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) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (or in lieu thereof, the notice referred to in Rule 173(a) under the Act), any event occurs in the reasonable judgment of the Representatives or the Company as a result of which the Registration Statement, the Pricing Disclosure Package (prior to the availability of the Prospectus) or the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend or supplement the Registration Statement, the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus in order to comply with the Act, Act or the Exchange Act the Company will promptly notify the Representatives and will prepare and file with the Commission Commission, subject to Section 5(a) above, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither The Company will not, without the prior consent of the Representatives' consent , (a) make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act, except for any Issuer Free Writing Prospectus set forth in Schedule II hereto, or (b) file, refer to, nor approve, use or authorize the use of any “free writing prospectus” as defined in Rule 405 under the Act with respect to the Offering or the Securities other than as set forth in Schedule II hereto. The Company consents to the use by any Underwriter of any free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering and that is included in any Preliminary Prospectus, (ii) information that describes the final terms of the Securities or their offering and that is included in the term sheet of the Company contemplated in Section (5)(b) of this Agreement or (iii) information permitted by Rule 134 under the Act. Notwithstanding any of the foregoing to the contrary, except pursuant to Section 5(f) hereof, no Underwriter shall include any “issuer information” (as defined in Rule 433) in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company where the use or reference to such free writing prospectus would require the filing of such “issuer information” with the Commission pursuant to Rule 433(d) due to the Underwriters' ’ inclusion of such “issuer information” in any “free writing prospectus”.
(f) 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 Representatives or the Company, conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus as then amended or supplemented, or would, in the judgment of the Representatives or the Company, include, when taken together with the Pricing Disclosure Package, 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 ofto the purchaser, not misleading, or if to comply with the Act or the Rules and Regulations it shall be necessary at any such time to amend or supplement any Issuer Free Writing Prospectus, the Company will notify the Representatives promptly and, if requested by the Representatives, prepare and furnish without charge to each Underwriter an appropriate amendment or supplement shall constitute a waiver of any of (in form and substance reasonably satisfactory to the conditions set forth in Section 5Representatives) that will correct such statement, omission or conflict or effect such compliance.
(dg) In order As soon as practicable after the date of this Agreement, but in no event later than twelve months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), the Company will make generally available to comply with its security holders an earning statement which will satisfy the provisions of Section 11(a) of the Act, .
(h) If by the Company will, as soon as practicable, but not later than 16 months, after third anniversary (the date “Renewal Deadline”) of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the initial effective date of the Registration Statement, (ii) the effective date any of the most recent post-Securities remain unsold by the Underwriters, the Company will file, if it has not already done so and is eligible to do so, an automatic shelf registration statement relating to the Securities, in a form reasonably satisfactory to you. If at the Renewal Deadline the Company is not eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, file a new shelf registration statement relating to the Securities, in a form reasonably satisfactory to you and will use its reasonable best efforts to cause such registration statement to be declared effective amendment within 180 days after the Renewal Deadline. The Company will take all other action necessary to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement to become effective prior to shall include such new automatic shelf registration statement or such new shelf registration statement, as the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreementcase may be.
(ei) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectusPreliminary Prospectus, the Prospectus, any related preliminary prospectus supplementIssuer Free Writing Prospectus, the Prospectus and all amendments and supplements to such documents, and all documents incorporated by reference in the Registration Statement, any Preliminary Prospectus and the Prospectus, in each case as soon as available and in such quantities as are reasonably requested.
(fj) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, except that in no event shall the Company shall not be obligated in connection therewith to file any qualify as a foreign corporation, to execute a general consent to service of process or to qualify as a foreign corporation subject itself to taxation in any such jurisdiction in which if it is not otherwise so qualifiedsubject.
(gk) During the period of five years after in which the date of any Terms AgreementSecurities remain outstanding, the Company will furnish to the Representatives andRepresentatives, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and and, upon request, the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, stockholders and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hl) The Company will pay the costs incident to the authorization, issuance, sale and delivery of the Securities to be sold by the Company to the Underwriters and any taxes payable in that connection; the costs incident to the preparation, printing and filing under the Act of the Registration Statement and any amendments and exhibits thereto; the costs incident to the preparation, printing and filing of any document and any amendments and exhibits thereto required to be filed by the Company under the Exchange Act; the cost of distributing the Registration Statement to the Underwriters as originally filed and each amendment thereto, each post-effective amendment thereof (including exhibits), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendments or supplements to or any documents incorporated by reference in any of the foregoing documents as provided in this Agreement; the costs of filing with the Financial Industry Regulatory Authority, Inc., if necessary; the fees and expenses of qualifying the Securities under the securities laws of the several jurisdictions as provided in this subsection and of preparing a Blue Sky memorandum and a memorandum concerning the legality of the Securities as an investment (including reasonable fees of counsel to the Underwriters in connection therewith; provided, that such fees of counsel in connection with such Blue Sky memorandum shall not exceed $5,000); the costs of printing and issuance of certificates; any transfer agent’s fees; and all other reasonable costs and expenses incident to the performance of its the obligations of the Company under this Agreement Agreement, provided that, except as provided in this subsection and will reimburse Section 9, the Underwriters for any expenses (shall pay their own costs and expenses, including the fees and disbursements expenses of their counsel) incurred by them in connection with qualification , any transfer taxes on the Securities which they may sell, the expenses of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for advertising any fees charged by investment rating agencies for the rating offering of the Securities made by the Underwriters and the cost of printing any Agreement among Underwriters, provided, further, that after nine months from the date of the this Agreement, the Underwriters shall pay the costs of printing any additional Registration Statements or Prospectuses, or any amendments or supplements thereto, required for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriterstheir own use.
(im) For a During the period beginning at from the time of execution date hereof and continuing to and including the date that is 90 days after the date of the Terms Agreement and ending one business day after the Closing DateProspectus, the Company will not, without the prior written consent of the Representatives, (i) offer, sell, contract to sell sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to the Securities or any securities of the Company that are substantially similar to the Securities, including but not limited to any publicly sold (including pursuant options or warrants to Rule 144A purchase shares of the Securities Actor any securities that are convertible into or exchangeable for, or that represent the right to receive, the Securities or any such substantially similar securities or to the Company’s common stock, or publicly disclose the intention to make such an offer, sale, pledge, disposition or filing or (ii) United States dollar-denominated debt securities enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Securities or the Company’s common stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Securities or such other securities, in cash or otherwise. The foregoing restrictions shall not apply to transfers (i) pursuant to the transactions contemplated by this Agreement, (ii) of shares of the Company’s common stock issuable upon conversion of the Securities, (iii) pursuant to employee benefit plans existing on the date of this Agreement, (iv) of any shares of the Company’s common stock issued or guaranteed by the Company and having in connection with matching contributions under the Company’s existing 401(K) retirement savings plans, (v) in the event of the filing of a maturity prospectus supplement in connection with the issuance of more than one year from common stock pursuant to the Company’s 2009 exchange offer, or (vi) upon the conversion or exchange of convertible or exchangeable securities outstanding as of the date of issuethis Agreement.
(n) The Company shall have obtained and delivered to the Representatives on or prior to the date of this Agreement executed copies of a lock-up letter agreement from each member of the board of directors and each executive officer of the Company, in each case substantially in the form of Schedule V hereto.
(o) To use its reasonable best efforts to list, subject to notice of issuance, the Securities on the New York Stock Exchange within 30 days of the First Closing Date.
(p) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Securities (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.
(q) The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Pricing Prospectus and the Prospectus.
(r) Substantially concurrently with the closing of the Offering on the First Closing Date, the Company will issue a notice of redemption for its outstanding 12¾% Senior Secured Notes Due 2014 and 14¼% Senior Secured Notes Due 2015, pursuant to each of the indentures governing such notes.
Appears in 1 contract
Samples: Underwriting Agreement (Unisys Corp)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, Underwriters one conformed signed copy of each of the Registration StatementStatements, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement either of the Registration Statement Statements or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of either of the Registration Statement Statements or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatements relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement Statements to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration StatementStatements, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedjurisdiction.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("the “Exchange Act"), ”) or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectus, any preliminary prospectus supplement or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives Purchasers promptly of any proposal to amend or supplement the Registration Statement or the Prospectus Offering Circular and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and of supplementation without the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Purchasers' consent. If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of the Notes by the Purchasers, any event occurs as a result of which which, in the Prospectus reasonable judgment of the Company, the Purchasers or counsel to the Purchasers, the Offering Circular 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Circular to comply with the Actany applicable law, the Company promptly will prepare notify the Purchasers of such event and file with promptly will prepare, at the Commission Company's own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the RepresentativesPurchasers' consent to, nor the Underwriters' their delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.. ---------
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Purchasers copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementPreliminary Offering Circular, the Prospectus Offering Circular and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Purchasers reasonably requestedrequest, and the Company will furnish to the Purchasers on the date hereof two copies of the Offering Circular certified as being true, complete and correct by a duly authorized officer of the Company, together with certified copies of the independent accountants' consents with respect to the incorporation by reference of their reports therein. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, and for so long as the sale of the Notes is reliant upon the exception afforded by Rule 144A, the Company will promptly furnish or cause to be furnished to the Purchasers and, upon the request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers and such holders and purchasers all such documents.
(fc) The Company will arrange for the qualification of the Securities Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably Purchasers designate and will continue such qualifications in effect so long as required for the distribution; providedresale of the Notes by the Purchasers, however, provided that the Company shall will not be obligated to file any general consent to service of process or required to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiednow qualified or to file a general consent to service of process in any such jurisdiction.
(gd) During the period of five three years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, Purchasers as soon as practicable available after the end of each fiscal year, a copy of its annual report such notices and reports as it is required to stockholders for such year; deliver to the Trustee or any holder of the Notes under Section 3.4 of the Indenture, ----------- and the Company will furnish to the Representatives each Purchaser (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, shareholders and (ii) from time to time, such other information concerning the Company as the Representatives Purchasers may reasonably request.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to each Purchaser and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(f) During the period of two years after the Closing Date (or such other period as the Commission may specify for the unrestricted resale of Notes which constitute "restricted securities" under Rule 144 under the Securities Act ("Rule 144")), the Company will not, and will not permit any of its affiliates (as defined in Rule 144) to, resell any of the Notes that have been reacquired by any of them which constitute "restricted securities" under Rule 144.
(g) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act, and the Company is and will not become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters other Financing Documents, including (i) the fees and expenses of the Trustee and its counsel, and (ii) all expenses in connection with the execution, issue, authentication, packaging, initial delivery, preparation and printing of the Notes, the Indenture, the other Financing Documents, the Preliminary Offering Circular, the Offering Circular and amendments and supplements thereto and any other document relating to the issuance, offer, sale and delivery of the Notes and the Exchange Notes. The Company agrees to pay for any reasonable expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate CSFBC designates and the printing of memoranda relating thereto, and for any fees charged by investment rating agencies for the rating of the Securities Notes and the Exchange Notes. The Company agrees to reimburse the Purchasers for all reasonable travel expenses of the Purchasers and the Company's officers and employees and any other reasonable expenses of the Purchasers and the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Notes from the Purchasers. The Company agrees to pay for expenses incurred in distributing Preliminary Offering Circulars and Offering Circulars (including any amendments and supplements thereto) to the Prospectus, any preliminary prospectuses Purchasers and any preliminary prospectus supplements for the reasonable fees and expenses of counsel to Underwritersthe Purchasers.
(i) For a period beginning at In connection with the time of execution offering of the Terms Agreement Notes, until the earlier of (x) 180 days following the Closing Date and ending (y) the date the Purchasers shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates has or will, either alone or with one business day after or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest in any Notes or attempt to induce any person to purchase any Notes; and neither the Company nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(j) The Company will not, until 30 days following the Closing Date, the Company will not, without the prior written consent of the RepresentativesPurchasers, pursuant to Rule 144A, Regulation S or an offering registered under the Securities Act, offer, sell or contract to sell, contract to sell or otherwise dispose of of, directly or indirectly, or announce the offering of, any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company (other than the Notes). The Company will not, at any time, offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and having a maturity sale of more than one year from the date of issueNotes.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedjurisdiction.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the --------------------------------- several Underwriters that it will furnish to Kirkxxxx & Xllix_____________________, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) , not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order As soon as practicable following the issuance and sale of any of the Registered Securities, 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 comply with the provisions of Section 11(a) of the Act and Rule 158 under the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectusProspectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five 5 years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, year a copy of its annual report to stockholders for such year; , and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate pursuant to Section 4(f) hereof and the printing of memoranda any memorandum relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for fees charged by the National Association of Securities Dealers, Inc. and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to the Underwriters. It is understood, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after on the later of (x) the termination of the syndicate of Underwriters in connection with the offering and sale of the Securities or (y) the Closing Date, the Company will not, without the prior consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Underwriting Agreement (Northrop Grumman Corp /De/)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During the time when a prospectus relating to the Offered Securities is required to be delivered under the Act, (i) the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; , and (ii) the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issuedissued and (iii) the Company will advise the Representatives promptly of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order The Company will make generally available to comply with the provisions of Section 11(a) of the Act, the Company will, its security holders as soon as practicable, but in any event not later than 16 months, eighteen months after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Act), (ii) the effective date an earnings statement of the most recent post-effective amendment to Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Registration Statement to become effective prior to Act and the date of such Terms Agreement Rules and Regulations (iii) including, at the date of filing with the Commission option of the Company's most recent Annual Report on Form 10-K prior to , Rule 158 under the date of such Terms AgreementAct).
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, supplement and the Prospectus and during the time when a prospectus relating to the Offered Securities is required to be delivered under the Act, all amendments and supplements to such documentsdocuments (other than those solely relating to securities other than the Offered Securities), in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus supplement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing any Agreement among Underwriters, this Agreement, any Terms Agreement, any Certificate of Designations, any Deposit Agreement, any Warrant Agreement, any Blue Sky Memorandum and any other documents in connection with the offering, purchase, sale and delivery of the Offered Securities; (iii) all expenses in connection with the qualification of the Offered Securities for offering and sale under state securities laws as provided in Section 4(f), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey(1); (iv) any fees charged by securities rating services for rating the Offered Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Offered Securities; (vi) the cost of preparing the Offered Securities and any Common Shares issuable upon conversion or exercise thereof; (vii) the fees and expenses in connection with the listing, if any, of the Offered Securities or any Common Shares issuable upon conversion or exercise thereof; (viii) the fees and expenses of any transfer agent relating to any Common Shares or any Preferred Shares; (ix) the fees and expenses of any Depositary relating to any Depositary Shares; (x) the fees and expenses of any Warrant Agent relating to any Warrants; and (xi) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section; provided, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Securities by them, and any advertising expenses connected with any offers they may make.
(g) If and to the extent so provided in the Terms Agreement referred to in Section 3, the Company, for the period therein provided, will not, directly or indirectly, sell, contract to sell or otherwise dispose of certain of its securities as specified in such Terms Agreement.
(1) Include language in italics if warrants are being sold; delete if shares of Common Stock or Preferred Stock are being sold.
(h) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in no event shall the Company shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as a dealer in securities or to take any action that would subject it to general or unlimited service of process in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it that:
(a) Prior to the termination of the Offering, the Company will furnish not file any amendment to Kirkxxxx & Xllixthe Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment, xxunsel supplement or Rule 462(b) Registration Statement to which the Representative reasonably objects. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for the Underwriters, one conformed copy any amendment of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(aany Rule 462(b) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Prospectus and will afford the Representatives a reasonable opportunity to comment on or for any such proposed amendment or supplement; and the Company will also advise the Representatives promptly additional information, (iv) of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any part thereof proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible its liftingthe withdrawal of such stop order or relief from such occurrence or objection, including, if issuednecessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared or become effective as soon as practicable.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Statutory Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, the Company will (i) notify promptly the Representative so that any use of the Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as the Representative may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the ActAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, or if it is shall be necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the ActAct or the rules thereunder, the Company promptly will (i) notify the Representative of any such event; (ii) prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 6, an amendment or supplement which that will correct such statement or omission or an amendment which will effect such compliance. Neither ; and (iii) supply any supplemented Prospectus to the Representatives' consent to, nor Representative in such quantities as the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5Representative may reasonably request.
(d) In order As soon as practicable, the Company will make generally available to comply with its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish not make any offer relating to the Representatives copies Units or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedAct.
(f) The Company will arrange furnish to the Representative\ and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the Offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives Representative may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies will maintain such qualifications in effect so long as required for the rating distribution of the Securities and for expenses incurred Securities; provided that in distributing no event shall the ProspectusCompany 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 preliminary prospectuses and any preliminary prospectus supplements to Underwritersjurisdiction where it is not now so subject.
(ih) For a During the period beginning commencing at the time of execution of the Terms Agreement Execution Time and ending one business day one-hundred-eighty (180) days after the Closing Datesuch date, the Company will not, without the prior written consent of the RepresentativesRepresentative, (x) (i) offer, sell, contract to sell sell, pledge or grant any option to purchase or otherwise dispose of (or enter into any publicly sold transaction that is designed to, or might reasonably be expected to, result in the disposition (including pursuant whether by actual disposition or effective economic disposition due to Rule 144A cash settlement or otherwise)), directly or indirectly, 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, with respect to any Units, Common Shares, Warrants or any securities convertible into, or exercisable or exchangeable for, Common Shares, (ii) United States dollar-denominated debt enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Units, Common Shares, Warrants or any securities issued convertible into, or guaranteed exercisable or exchangeable for, Common Shares owned by it, him or her, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) or publicly announce an intention to effect any such transaction specified in clause (i) or (ii); provided, however, that the Company may (1) issue and having a maturity sell the Private Placement Warrants, (2) issue and sell the Option Securities upon the exercise of more than one year from the date of issue.option provided for in Section 3 hereof,
Appears in 1 contract
Samples: Underwriting Agreement (Trajectory Alpha Acquisition Corp.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix_____________________, xxunsel counsel for the UnderwritersUnderwriters ("Underwriter's Counsel"), one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The During the time when a prospectus relating to the Registered Securities is required to be delivered under the Act, (i) the Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; , and (ii) the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order The Company will make generally available to comply with the provisions of Section 11(a) of the Act, the Company will, its security holders as soon as practicable, but in any event not later than 16 months, eighteen months after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement (as defined in Rule 158(c) under the Act), (ii) the effective date an earning statement of the most recent post-effective amendment to Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Registration Statement to become effective prior to Act and the date of such Terms Agreement Rules and Regulations (iii) including, at the date of filing with the Commission option of the Company's most recent Annual Report on Form 10-K prior to , Rule 158 under the date of such Terms AgreementAct).
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, supplement and the Prospectus and and, during the time when a prospectus relating to the Registered Securities is required to be delivered under the Act, all amendments and supplements to such documentsdocuments (other than those solely relating to securities other than the Securities), in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in no event shall the Company shall not be obligated to file any general consent to service of process or required to qualify as a foreign corporation or as a dealer in securities or to file a general or unlimited consent for service of process in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During The Company will pay or cause to be paid the period following: (i) the fees, disbursements and expenses of five years after the date Company's counsel and accountants in connection with the registration of the Registered Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus supplement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing any Agreement among Underwriters, this Agreement, any Terms Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the Company will furnish to the Representatives andoffering, upon requestpurchase, to each sale and delivery of the other Underwriters, if any, as soon as practicable after Securities; (iii) all expenses in connection with the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement qualification of the Company filed with the Commission Securities for offering and sale under the Securities Exchange Act of 1934, state securities laws as amended ("Exchange Act"provided in Section 4(f), or mailed to stockholders, and (ii) from time to time, such other information concerning including the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including reasonable fees and disbursements of counsel) incurred by them counsel for the Underwriters in connection with such qualification of and in connection with the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.Blue Sky
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the earlier of (i) the termination of trading restrictions for the Securities, as notified to the Company by the Representatives, and (ii) the Closing Date, the Company will not, without the prior consent of the Representatives, the Company will not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant securities substantially similar to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueSecurities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it that:
(a) Prior to the termination of the Offering, the Company will furnish not file any amendment to Kirkxxxx & Xllixthe Registration Statement or supplement to the Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished the Representative with a copy for its review prior to filing and will not file any such proposed amendment, xxunsel supplement or Rule 462(b) Registration Statement to which the Representative reasonably objects. The Company will cause the Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representative with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representative of such timely filing. The Company will promptly advise the Representative (i) when the Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement or any Written Testing-the-Waters Communication shall have been filed with the Commission, (ii) when, prior to termination of the Offering, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for the Underwriters, one conformed copy any amendment of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(aany Rule 462(b) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or any Written Testing-the-Waters Communication or for any supplement to the Prospectus and will afford the Representatives a reasonable opportunity to comment on or for any such proposed amendment or supplement; and the Company will also advise the Representatives promptly additional information, (iv) of the filing of any such amendment or supplement and of the institution issuance by the Commission of any stop order proceedings in respect suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Written Testing-the-Waters Communication, or of the institution of any part thereof proceedings for that purpose or pursuant to Section 8A of the Act and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction or the institution or threatening of any proceeding for any such purpose. The Company will use its best efforts to prevent the issuance of any such stop order and or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible its liftingthe withdrawal of such stop order or relief from such occurrence or objection, including, if issuednecessary, 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) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event or development occurs as a result of which the Statutory Prospectus would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in 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 Statutory Prospectus may cease until it is amended or supplemented; (ii) amend or supplement the Statutory Prospectus to correct such statement or omission; and (iii) supply any amendment or supplement to the Representative in such quantities as the Representative may reasonably request.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event or development occurs as a result of which the Prospectus as then amended or supplemented would include an any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, made at such time not misleading, or if it is shall be necessary at any time to amend the Registration Statement or supplement the Prospectus to comply with the ActAct or the rules thereunder, the Company promptly will (i) notify the Representative of any such event; (ii) prepare and file with the Commission Commission, subject to the second sentence of paragraph (a) of this Section 6, an amendment or supplement which that will correct such statement or omission or an amendment which will effect such compliance. Neither ; and (iii) supply any supplemented Prospectus to the Representatives' consent to, nor Representative in such quantities as the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5Representative may reasonably request.
(d) In order As soon as practicable, but in any event not later than sixteen (16) months after the effective date of the Registration Statement (as defined in Rule 158(c)), the Company will make generally available to comply with its security holders and to the Representative an earnings statement or statements of the Company and its subsidiaries that will satisfy the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Act and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRule 158.
(e) The Company will furnish not make any offer relating to the Representatives copies SAILSM Securities or the securities contained therein that constitutes or would constitute a Free Writing Prospectus or a portion thereof required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedAct.
(f) The Company will arrange furnish to the Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto as the Representative may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the Offering.
(g) The Company will indemnify and hold harmless the Underwriters against any documentary, stamp or similar issue tax, including any interest and penalties, on the creation, issue and sale of the Offered Securities and on the initial resale thereof by the Underwriters and on the execution and delivery of this Agreement. All payments to be made by the Company hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
(h) The Company will arrange, if necessary, for the qualification of the SAILSM Securities for offering and sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably Representative may designate and will continue maintain such qualifications in effect so long as required for the distributiondistribution of the SAILSM Securities; provided, however, provided that in no event shall the Company shall not be obligated to file qualify to do business in any general consent 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 to qualify as a foreign corporation sale of the SAILSM Securities, in any jurisdiction in which where it is not now so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriterssubject.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior written consent of the RepresentativesRepresentative, (x) offer, sell, contract to sell sell, pledge, charge, hedge or otherwise dispose of (or enter into any publicly sold transaction that is designed to, or might reasonably be expected to, result in the disposition (including pursuant whether by actual disposition or effective economic disposition due to Rule 144A of the Securities Actcash settlement or otherwise) United States dollar-denominated debt securities issued or guaranteed by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any other SAILSM Securities, Ordinary Shares, Warrants or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares or publicly announce an intention to effect any such transaction during the period commencing on the date hereof and having a maturity of more than one year from ending 180 days after the date of issuethis Agreement; provided, however, that (i) the foregoing shall not apply to the forfeiture of a portion of the Alignment Shares pursuant to their terms or any transfer of SAILSM Securities, Ordinary Shares, Private Placement Warrants, Warrants or Alignment Shares to any current or future director, officer or independent director of the Company (provided that such current or future director, officer or independent director transferee is subject to the Insider Letter or executes an agreement substantially identical to the Insider Letters, as applicable to directors and officers, at the time of such transfer; provided, further, that to the extent any Section 16 reporting obligation is triggered as a result of such transfer, any related Section 16 filing includes a practical explanation as to the nature of the transfer) and (ii) the Company may (1) issue and sell the Private Placement Warrants, (2) issue and sell the Optional Securities upon exercise of the option provided for in Section 3 hereof, (3) register with the Commission pursuant to the Registration Rights Agreement, in accordance with the terms of the Registration Rights Agreement, the resale of the securities covered thereby, and (4) issue securities in connection with an initial Business Combination, or (y) release the Sponsor or any officer, director or director nominee from the 180- day lock-up contained in the Insider Letters.
(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 Offered Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Prospectus and each 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 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; (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; (v) the registration of the Offered Securities under the Exchange Act and the listing of the Offered Securities and the Ordinary Shares and Warrants included in the Offered Securities on the NYSE; (vi) the printing and delivery of a preliminary blue sky memorandum, any registration or qualification of the Offered Securities for offer and sale under the securities or blue sky laws of the several states and any filings required to be made with FINRA(including filing fees and the reasonably incurred and documented fees and expenses of counsel for the Underwriters relating to such filings, memorandum, registration and qualification in an aggregate amount up to $25,000); (vii) the transportation and other expenses incurred by or on behalf of the Company (and not the Underwriters) in connection with presentations to prospective purchasers of the Offered Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel for the Company (including local and special counsel); and (ix) all other costs and expenses incident to the performance by the Company of its obligations hereunder. Where, under the terms of this Agreement, the Company is liable to indemnify or reimburse or otherwise compensate the Underwriters in respect of any costs, charges, expenses, losses or other amounts, the payment shall include an amount equal to any VAT thereon not otherwise recoverable by the recipient or the representative member of any VAT group of which it forms part, subject to that person or representative member using all reasonable endeavours to recover such amount of VAT as may be practicable. In this agreement, “VAT” shall mean: (a) any value added tax imposed by the UK Value Added Tax Xxx 0000; (b) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2996/112); (c) any other tax of a similar nature imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (a) or (b) above.
Appears in 1 contract
Samples: Underwriting Agreement (ST Energy Transition I Ltd.)
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under 90th day following the ActClosing Date, any event occurs involving the Company, the Depositor, the Issuer or, to the knowledge of a Responsible Officer of the Company, the Collateral Manager shall occur as a result of which the Prospectus Final Offering Circular (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Initial Purchaser and will cause the Issuer to prepare and file with furnish to the Commission Initial Purchaser an amendment or supplement which to the Final Offering Circular that will correct such statement or omission omission. The Issuer will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Final Offering Circular (i) prior to having furnished the Underwriters' delivery of, any such Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) except to the extent the Company may determine it or the Issuer is required to so disclose pursuant to applicable law and after consultation with the Initial Purchaser (and, in such a circumstance, shall constitute remove all references to the Initial Purchaser therefrom if so requested by the Initial Purchaser), in a waiver of any of manner to which the conditions set forth in Section 5Initial Purchaser or its counsel shall object.
(db) In order During the period referred to comply with the provisions of in Section 11(a) of the Act6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchaser, without charge, copies of the Registration Statement, Final Offering Circular (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case case, as soon as reasonably available and in such quantities as are the Initial Purchaser may from time to time reasonably requestedrequest.
(c) Subject to compliance with Regulation FD, at all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will make available to each offeree the Additional Offering Documents and such information concerning any other relevant matters as it or any of its affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by it or such affiliate, as applicable, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent it or any of its affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by it or such affiliate, as applicable), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to by the Initial Purchaser or in connection with the Company’s disclosure obligations under the Exchange Act, provided that no such disclosure under the Exchange Act would result in a requirement that the offering of the Notes be registered under §5 of the Securities Act, (iv) the Company will advise the Initial Purchaser promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (v) the Company will advise the Initial Purchaser promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vi) the Company will advise the Initial Purchaser of the suspension of the qualification of the Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) Subject to compliance with Regulation FD, the Company will furnish, upon the written request of any Noteholder or of any owner of a beneficial interest in a Note, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Issuer is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) Except as otherwise provided in the Indenture, each Offered Note will contain legends in the forms set forth in the Final Offering Circular.
(f) The Company will arrange for Neither the qualification Issuer nor any of its affiliates or any other Person acting on their behalf shall engage, in connection with the offer and sale of the Securities for sale and Offered Notes, in any form of general solicitation or general advertising within the determination meaning of their eligibility for investment Rule 502(c) of Regulation D under the laws of such jurisdictions as Securities Act, including, but not limited to, the Representatives shall reasonably designate and will continue such qualifications following:
(i) any advertisement, article, notice or other communication published in effect so long as required for the distributionany newspaper, magazine or similar medium or broadcast over television or radio; provided, however, that the Company shall not be obligated to file and
(ii) any seminar or meeting whose attendees have been invited by any general consent to service of process solicitation or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedgeneral advertising.
(g) During The Issuer shall not solicit any offer to buy from or offer to sell or sell to any Person any Offered Notes, except through the period Initial Purchaser or with the consent of five years after the date Initial Purchaser and/or as otherwise specified in the Indenture at any time prior to the Closing Date; on or prior to the Closing Date, neither the Issuer nor any of its affiliates (except for compliance by the Company with Regulation FD) shall publish or disseminate any Terms material other than the Additional Offering Documents consented to by the Initial Purchaser, the Time of Sale Information and the Final Offering Circular in connection with the offer or sale of the Offered Notes as contemplated by this Agreement, unless the Company will furnish Initial Purchaser shall have consented to the Representatives and, upon request, to each of use thereof; if the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy Issuer or any of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as availableaffiliates makes any press release including “tombstone” announcements, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed in connection with the Commission under Transaction Documents, the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed Issuer shall permit the Initial Purchaser to stockholders, review and (ii) from time to time, approve such other information concerning the Company as the Representatives may reasonably requestrelease in advance.
(h) The Company will pay all expenses incident to the performance Issuer shall not take, or permit or cause any of its obligations affiliates to take, any action whatsoever which would have the effect of requiring the registration, under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification Securities Act, of the Registered Securities for offer or sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to UnderwritersOffered Notes.
(i) For a period beginning at The Issuer shall not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the time of execution Exchange Act or otherwise, in stabilization or manipulation of the Terms Agreement and ending one business day after price of any Offered Note to facilitate the Closing Date, the Company will not, without the prior consent sale or resale of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold Offered Notes.
(including pursuant to Rule 144A j) The Company shall apply the net proceeds from the sale of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by Offered Notes as set forth in the Company and having a maturity Final Offering Circular under the heading “Use of more than one year from the date of issueProceeds”.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Firm Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Firm Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, or Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives Baird promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Baird a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives Baird promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Firm Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify Baird of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Xxxxx’x consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Firm Securities, (iiwhich will satisfy the provisions of Section 11(a) the effective date of the most recent post-Act. For the purpose of the preceding sentence, “Availability Date” means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such effective amendment to date, except that, if such fourth quarter is the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission last quarter of the Company's most recent Annual Report on Form 10-K prior to ’s fiscal year, “Availability Date” means the date 90th day after the end of such Terms Agreementfourth fiscal quarter.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are Baird reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Firm Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Baird designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees or other expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Firm Securities for sale under the laws of such jurisdictions as the Representatives Baird may reasonably designate and the printing preparation of memoranda relating theretothereto (provided that counsel fees in connection therewith do not exceed $5,000), for any fees charged applicable filing fee incident to, the review by investment rating agencies for the rating National Association of Securities Dealers, Inc. of the Firm Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Firm Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day 90 days after the Closing Datedate hereof, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, or publicly sold disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Baird, except (including i) issuances of Common Stock pursuant to Rule 144A the conversion or exchange of convertible or exchangeable securities or the Securities Act) United States dollar-denominated debt securities issued exercise of warrants or guaranteed by the Company and having a maturity of more than one year from options, in each case outstanding on the date of issuethis Agreement, (ii) grants of employee stock options pursuant to the terms of a plan in effect on the date of this Agreement and issuances of Common Stock pursuant to the exercise of such options, (iii) issuance of Common Stock to employees pursuant to the terms of a plan in effect on the date of this Agreement, (iv) filing a registration statement increasing the number of shares of Common Stock or securities convertible into or exchangeable or exercisable for shares of Common Stock available for grant or issuance under the terms of a plan in effect on the date of this Agreement, (v) filing a registration statement to register shares of Common Stock for use in connection with acquisitions, and (vi) issuances of Common Stock in connection with acquisitions and the filing of a registration statement to permit the resale of those shares of Common Stock.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Preliminary Offering Circular or the Prospectus Final Offering Circular and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and supplementation without the consent of the institution by the Commission of any stop order proceedings in respect of the Registration Statement Credit Suisse, which consent shall not be unreasonably withheld or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) delayed. If, at any time when a prospectus relating prior to the completion of the resale of the Offered Securities is required to be delivered under by the ActPurchasers, any event occurs as a result of which the Prospectus as then amended Preliminary Offering Circular, Final Offering Circular or supplemented any document included in the General Disclosure Package or any Supplemental Marketing Material included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare notify the Representatives of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' consent of Credit Suisse to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementPreliminary Offering Circular, the Prospectus Final Offering Circular and all amendments each document comprising a part of the General Disclosure Package and supplements to such documentseach item of Supplemental Marketing Material, if any, in each case as soon as available and in such quantities as are the Representatives reasonably requestedrequest. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished, upon the written request of the Representatives, to the Representatives and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; providedresale of the Offered Securities by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state or jurisdiction.
(gd) During the period of five three years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if anyRepresentatives, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K report, notice or 10-Q or definitive proxy statement communication sent to the Company’s stockholders; provided that such delivery requirements shall be deemed to be met by the Company’s compliance with its reporting requirements pursuant to the Exchange Act and the rules and regulations promulgated by the Commission thereunder.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representatives and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company filed with the Commission will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Exchange Act Act) to, resell any of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestOffered Securities that have been reacquired by any of them.
(hg) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement and will reimburse the Underwriters Indenture including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Preliminary Offering Circular, any other documents comprising part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Offered Securities; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) for any expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate and the printing of memoranda relating thereto, ; (v) for any fees charged by investment rating agencies for the rating of the Securities Offered Securities; and (vi) for expenses incurred in distributing the ProspectusPreliminary Offering Circular, any preliminary prospectuses other documents comprising part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any preliminary prospectus supplements Supplemental Marketing Materials to Underwritersthe Purchasers. The Company will also reimburse the Purchasers (to the extent incurred by them) for all reasonably incurred travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers; provided that the Company shall not pay, or reimburse the Purchasers for, any fees or expenses of or relating to any consultants or more than 50% of the cost of any aircraft chartered in connection with such meetings. Such amount may be deducted from the purchase price for the Offered Securities set forth in Section 3 hereof.
(h) In connection with the offering, until Credit Suisse shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates 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 affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(i) For a period beginning at of 30 days after the time of execution date of the Terms Agreement and ending one business day after initial offering of the Closing DateOffered Securities by the Purchasers, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant to Rule 144A of of, directly or indirectly, or file with the Commission a registration statement under the Securities Act) Act relating to, any United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Credit Suisse. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Immediately following the execution of this Agreement, the Company will prepare the Prospectus Supplement containing the public offering price and other selling terms of the Offered Securities, the plan of distribution thereof and such other information as may be required by the Act or the Rules and Regulations and will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2424(b) (or, if applicable and if consented within the time period required by Rule 424(b). The Company will advise the Underwriters promptly of any such filing pursuant to by the Representatives, Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives Underwriters promptly of any proposal to amend or supplement the Initial Registration Statement, any Additional Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Underwriters’ consent; and the Company will also advise the Representatives Underwriters promptly of the filing effectiveness of each Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement) and of any such amendment or supplement supplementation of a Registration Statement or the Prospectus and of the institution or threat by the Commission of any stop order proceedings in respect of the a Registration Statement or of any part thereof and will use its best commercially reasonable efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by the Underwriters or any dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were mademade or existing at the time the Prospectus is to be so delivered, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Underwriters of such event and will promptly prepare and and, subject to Section 4(b) above, file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriters’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date Effective Date of the Additional Registration Statement, (iiStatement which will satisfy the provisions of Section 11(a) the effective date of the most recent post-effective amendment to Act. For the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission purpose of the Company's most recent Annual Report on Form 10-K prior to preceding sentence, “Availability Date” means the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 45th day after the end of each the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, a copy of its annual report to stockholders for such year; and “Availability Date” means the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business 90th day after the Closing Date, the Company will not, without the prior consent end of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issuesuch fourth fiscal quarter.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with subparagraph (2) of Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of this Agreement) (or, if applicable, subparagraph (5)). The Company will advise the Terms AgreementRepresentatives promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplement without the Representatives’ consent (such consent not to be unreasonably withheld); and the Company will also advise the Representatives Representatives’ promptly of the filing effectiveness of any such amendment or supplement of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement Statement, as it may be amended or of any part thereof supplemented, and will use its reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at the Company’s own expense, an amendment or supplement which that will correct such statement or omission or an amendment which that will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the later Effective Date that will satisfy the provisions of (iSection 11(a) the effective date of the Registration Statement, (ii) Act. For the effective date purpose of the most recent post-effective amendment to preceding sentence, “Availability Date” means the Registration Statement to become effective prior to 40th day after the date end of the fourth fiscal quarter following the fiscal quarter that includes such Terms Agreement and (iii) Effective Date, except that, if such fourth fiscal quarter is the date of filing with the Commission last quarter of the Company's most recent Annual Report on Form 10-K prior to ’s fiscal year, “Availability Date” means the date 75th day after the end of such Terms Agreementfourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including Statement (two of which will be signed and will include all exhibits), any each related preliminary prospectus, and, so long as a prospectus relating to the Securities is required to be delivered under the Act in connection with sales by any related preliminary prospectus supplementUnderwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives reasonably requestedrequest. The Prospectus shall be so furnished as soon as practicable but in no event later than the second business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for cooperate with the Underwriters and counsel to the Underwriters in connection with the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or required in connection therewith to qualify as a foreign corporation in any jurisdiction in which it is not now so qualifiedqualified or to take any action that would subject it to general consent to service of process or taxation other than as to matters and transactions relating to the Registration Statement and the Prospectus, in any jurisdiction in which it is not now so subject.
(g) During the period of five years after the date of So long as any Terms AgreementSecurities remain outstanding, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its the annual report to stockholders for such year; and so long as any Securities remain outstanding, the Company will furnish to the Representatives (i) during any period in which the Company is not subject to Section 13 or 15(d) of the 1934 Act, as soon as availablepracticable, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange 1934 Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay or cause to be paid all expenses incident to the performance of its the obligations of the Company under this Agreement Agreement, including any filing fees and will reimburse the Underwriters for any other expenses (including fees and disbursements of counselcounsel to the Company) incurred by them in connection with qualification of the Registered Securities for sale under the securities or blue sky laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating theretovarious states, for any fees charged by investment rating agencies for the rating of the Securities, any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Securities and for expenses incurred in distributing the Prospectus, Prospectus (including any preliminary prospectuses amendments and any preliminary prospectus supplements thereto) to the Underwriters.
(i) For a During the period beginning at on the time of execution of date hereof and continuing to and including the Terms Agreement and ending one business day after date [30] days following the Closing Date, the Company will not, without the prior consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose of any publicly sold preferred securities of the Company substantially similar to the Series A Preferred Shares, including but not limited to any securities that are convertible into or exchangeable for, or that represent the right to receive, any such substantially similar securities, without the prior written consent of the Representatives.
(including pursuant j) To use its commercially reasonable best efforts to Rule 144A accomplish the listing of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueon The Nasdaq National Market.
Appears in 1 contract
Samples: Underwriting Agreement (K Hovnanian Enterprises Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representativesapplicable, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives CSFB promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives CSFB a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives CSFB promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify CSFB of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' CSFB's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Representative copies of the Registration Statement, including Statement in the form it became effective (two of which will include all exhibitsexhibits but none of the incorporated documents) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedCSFB requests. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on June 16, 2003. All other documents shall be so furnished as soon as available.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate CSFB designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate CSFB designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectuspreliminary prospectuses, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at and the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold Prospectus (including pursuant any amendments and supplements thereto) to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueUnderwriter.
Appears in 1 contract
Samples: Underwriting Agreement (NVR Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(ai) The Company has filed or will file the each Statutory Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of this Agreement. The Company will also prepare a final term sheet, containing solely the Terms Agreementterms of the Offered Securities, substantially in the form set out in Schedule C, and file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule and file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act.
(bii) The Company will advise the Representatives Underwriters promptly of any proposal to amend or supplement the Registration Statement or the any Statutory Prospectus and will afford the Representatives a reasonable opportunity to comment on not effect any such proposed amendment or supplementsupplement if the Underwriters reasonably object thereto; and the Company will also advise the Representatives Underwriters promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(ciii) If, at any time when a prospectus relating to the Offered Securities is required to be delivered (whether physically or through compliance with Rule 172 under the Act) in connection with sales by the Underwriters or any dealer, any event occurs as a result of which the Prospectus Prospectus, as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Registration Statement or the Prospectus to comply with the Act, the Company promptly will notify the Underwriters of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriters’ consent to, nor the Underwriters' ’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57 hereof.
(div) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(ev) The Company will furnish to the Representatives Underwriters copies of the Registration Statement, Statement in the form it became effective (including all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by the Underwriters or any dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Underwriters request. The Prospectus shall be so furnished on or prior to 3:00 p.m., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(fvi) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably Underwriters designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that none of the Company shall not or the Subsidiary Guarantors will be obligated required to qualify as a foreign entity or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch state.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hvii) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement and will reimburse the Underwriters for Indentures, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and the preparing, printing and distributing of any Issuer Free Writing Prospectuses to investors or prospective investors; (iii) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (iv) any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Representative designates and the printing of memoranda relating thereto, for ; (v) any fees charged by investment rating agencies for the rating of the Securities Offered Securities; and for (vi) expenses incurred in distributing the Prospectuspreliminary prospectuses, any preliminary prospectuses and any preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters.
(iviii) For a period beginning at the time of execution of the Terms Agreement and ending one business day 60 days after the Closing Datedate of this Agreement, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell or otherwise dispose of distribute any publicly sold notes, any security convertible into or exchangeable into or exercisable for notes or any other debt securities substantially similar to the Offered Securities (including except for the Offered Securities issued pursuant to Rule 144A this Agreement), without the prior written consent of the Representative.
(ix) Before using, authorizing, approving or referring to any written communication that constitutes an offer to sell or a solicitation to buy the Offered Securities Act) United States dollar-denominated debt securities issued or guaranteed by (other than the General Disclosure Package), the Company will furnish to the Underwriters and having counsel for the Underwriters a maturity copy of more than one year from such written communication for review and will not use, authorize, approve or refer to any such written communication to which the date Representative reasonably objects.
(x) The Company will apply the net proceeds of issuethe offering and the sale of the Offered Securities in a manner consistent with the description contained in the General Disclosure Package under the caption “Use of Proceeds.”
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including Statement in the form it became effective (two of which will be signed and will include all exhibits) and of all amendments thereto, any related preliminary prospectus, any related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Representatives request. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectuspreliminary prospectuses, any preliminary prospectuses and any preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to Underwritersthe Underwriters and for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities; provided that the Underwriters shall pay 100% of the expense of the use of a private aircraft in connection with travel to such meetings and such other expenses as may be agreed to in writing by the Company and the Representatives.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day 90 days after the Closing Datedate of this Agreement, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of each of the Representatives, except issuances of Securities pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options, in each case outstanding on the date hereof, the replenishment of the Company's unallocated Registration Statement up to $500,000,000 of total securities, or grants of employee stock options pursuant to the terms of a plan in effect on the date hereof.
(i) The Company shall not consent to (a) any transaction by The Anschutz Corporation or any affiliate of The Anschutz Corporation pursuant to Section 5 of that certain Stock Purchase Agreement, dated as of January 15, 2003, between the Company, The Anschutz Corporation, Anschutz Investment Company, The Anschutz Overseas Corporation, Anschutz Exploration Corporation and Anschutz Italiana Petroli, S.r.l. (the "Anschutz Purchase Agreement) or (b) any offer, sale, contract to sell, pledge or other disposition, direct or indirect, of any publicly sold shares of common stock of the Company (including or securities convertible into or exchangeable or exercisable for any such shares of common stock), or any entrance into any transaction which would have the same effect, or any entrance into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of the shares of such common stock, whether any such transaction is to be settled by delivery of the shares of common stock or such other securities, in cash or otherwise, or any public disclosure of the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement pursuant to Rule 144A the letter agreement, dated as of January 15, 2003, between the Company, Oaktree Capital Management, LLC, OCM Principal Opportunities Fund, L.P., OCM Opportunities Fund II, L.P. and Columbia/HCA Master Retirement Trust, without, in each case, the prior written consent of each of the Securities Act) United States dollar-denominated debt securities issued Representatives, and shall not register or guaranteed by permit to be registered on the books and records of the Company and having a maturity of more than one year from the date of issueany transfer to which this Section is applicable without such prior written consent.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of the Offered Securities:
(a) The Company will file (i) the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesLead Underwriter, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms Agreement, and (ii) any Issuer Free Writing Prospectus (including a Term Sheet in the form attached as Annex B hereto) to the extent required by Rule 433 under the Securities Act.
(b) The Company will pay the registration fees for any offering of the Offered Securities within the time period required by Rule 456(b)1(i) under the Securities Act (without giving effect to the proviso therein) and in any event, prior to the Closing Date.
(c) The Company will advise the Representatives promptly of any proposal (at any time when a prospectus relating to the Offered Securities is required to be delivered under the Securities Act in connection with sales by any Underwriter or dealer) to amend or supplement the Registration Statement or the Prospectus Prospectus, or any intention or action to make, prepare, use, authorize, refer to or file any Issuer Free Writing Prospectus, and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment, supplement or Issuer Free Writing Prospectus, and will not file any such amendment or supplementsupplement or make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus to which the Representatives shall have objected in writing; and the Company will also advise the Representatives promptly of the filing of any such amendment amendment, supplement or supplement Issuer Free Writing Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts every reasonable effort to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(d) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representative may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(e) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActSecurities Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which (i) the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if (ii) it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56. In addition, the Company promptly will notify the Representatives of the receipt by the Company of any notice of objection by 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.
(df) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms Agreement, the Company will make generally available to its securityholders an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Securities Act.
(eg) The Company will furnish to the Representatives Underwriters copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus, any Issuer Free Writing Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Lead Underwriter reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(fh) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Lead Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(gi) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives Lead Underwriter may reasonably request; provided, with respect to clause (ii), that such information is available without undue expense and such Lead Underwriter shall keep any such information on a confidential basis.
(hj) The Company will pay all expenses incident to the performance of its obligations under the Terms Agreement (including the provisions of this Agreement Agreement) and will reimburse the Underwriters (if and to the extent incurred by them) for any filing fees or other expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives Lead Underwriter may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any applicable filing fee of the Financial Industry Regulatory Authority relating to the Registered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(ik) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant to Rule 144A of of, directly or indirectly, or file with the Commission a registration statement under the Securities Act) Act relating to United States dollar-denominated debt securities registered under the Securities Act, issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposal or filing, without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date specified under “Blackout” in the Terms Agreement.
(l) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act..
Appears in 1 contract
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will use its best efforts to cause the Registration Statement, if the Effective Time is subsequent to the execution and delivery of this Agreement, and any amendment thereof, to become effective. If the Effective Time is prior to the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2subparagraph (1) (or, if applicable and if consented to by the RepresentativesManaging Agent, subparagraph (4)) of Rule 424(b)(5)424(b) not later than the earlier of (A) the second business day following the execution and delivery of this Agreement or (B) the Terms Agreementfifth business day after the Effective Date. The Company will advise the Managing Agent promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives Managing Agent promptly of of: (i) any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement supplementation without the Managing Agent's consent; (ii) the effectiveness of the Registration Statement (if the Effective Time is subsequent to the execution and delivery of this Agreement) and of any amendment or supplementation of the Registration Statement or the Prospectus; (iii) the institution by the Commission of any stop order in respect of the Registration Statement or of any notification or other communication relating to the institution of any stop order proceedings in respect of the Registration Statement or of any part thereof (and the Company will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued); and (iv) any notification of the suspension of qualification of the Notes for sale in any jurisdiction or the initiation or threat of any proceedings for that purpose.
(c) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will advise the Managing Agent promptly thereof and will prepare promptly and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders security holders an earnings statement covering a period of at least 12 months beginning after the later Effective Date which will satisfy the provisions of (iSection 11(a) the effective date of the Registration Statement, (ii) Act and Rule 158 thereunder. For the effective date purpose of the most recent post-effective amendment to preceding sentence, "Availability Date" means the Registration Statement to become effective prior to 45th day after the date end of the fourth fiscal quarter following the fiscal quarter that includes the Effective Date, except that, if such Terms Agreement and (iii) fourth fiscal quarter is the date of filing with the Commission last quarter of the Company's most recent Annual Report on Form 10-K prior to fiscal year, "Availability Date" means the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 90th day after the end of each such fourth fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestquarter.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or the Prospectus any Supplemental Marketing Material and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement without the Representative’s consent, such consent not to be unreasonably withheld. The Company will timely file all reports required to be filed by the Company pursuant to Section 13(a), 13(c) and 15(d) of the institution Exchange Act for so long as deliveries of an offering circular are being made by the Commission of any stop order proceedings Purchasers in respect connection with the offering or sale of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Notes. If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of the Notes by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is otherwise necessary at any time to amend the Prospectus or supplement any such document in order to comply with the Actlaw, the Company promptly will notify the Representative of such event and promptly will prepare and file with furnish, at its own expense, to the Commission Purchasers and the dealers and to any other dealers at the request of the Representative, an amendment or supplement which will correct such statement or omission omission, or an amendment which so that such document will effect such compliancecomply with law. Neither the Representatives' Representative’s consent to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56. The third sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Representative copies of the Registration StatementPreliminary Offering Circular, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementeach other document comprising a part of the General Disclosure Package, the Prospectus and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Securities Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; providedresale of the Notes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited liability company or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation take any action that would subject itself to taxation based on income or revenues in any such jurisdiction in which where it is not so qualifiedcurrently subject to taxation.
(gd) During the period of five years one year after the date of any Terms AgreementClosing Date, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anyPurchasers, as soon as practicable after the end of each fiscal year, a copy of its the Company’s annual report to stockholders for such year; and the Company will furnish to the Representatives (i) Representative and, upon request, to each of the other Purchasers as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company and of any guarantor that is a reporting company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholdersunitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, it is not required to furnish such reports or statements to the Purchasers.
(e) During the period of one year after the Closing Date, the Company will, upon reasonable request, furnish to the Representative, each of the other Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(f) During the period of one year after the Closing Date, the Company will not, and will not permit any of its Affiliates to, resell any of the Notes that have been reacquired by any of them. Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of (i) the sale of the Notes by the Company to the Purchasers, (ii) from time the resale of the Notes by the Purchasers to timeany subsequent purchasers or (iii) the resale of the Notes by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, such other information concerning the Company as will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Representatives may reasonably requestInvestment Company Act.
(h) None of the Company, its Affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company makes no representation) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Notes, and the Company and its Affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incident incidental to the performance of its obligations under this Agreement, the Indenture, the Registration Rights Agreement and will reimburse the Underwriters Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Common Security Trustee and any transfer agent, registrar or depositary and their professional advisers for which the Company is responsible; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Registration Rights Agreement, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counselcounsel to the Purchasers) incurred by them in connection with qualification of the Registered Securities Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate Representative designates and the preparation and printing of memoranda relating thereto, for ; (vi) any fees charged by investment rating agencies for the rating of the Securities Notes; (vii) all fees, disbursements and expenses of Xxxxxx Consultants International, Inc. (the “Independent Engineer”) and any other third-party consultants who have prepared reports in connection with the transactions contemplated by this Agreement, in each case for which the Company is responsible, and Wood Mackenzie Limited; (viii) expenses incurred in distributing the ProspectusPreliminary Offering Circular, any preliminary prospectuses other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto, including any form of electronic distribution) and any preliminary prospectus supplements Supplemental Marketing Material to Underwritersthe Purchasers; (ix) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (x) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including, subject to prior approval by the Company, the chartering of airplanes.
(ik) For a period beginning at The Company will use the time of execution net proceeds received in connection with the offering of the Terms Agreement Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representative shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its Affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its Affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes; and ending one business day after neither it nor any of its Affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(m) Until the Closing Date, the Company will not, without the prior consent directly or indirectly, take any of the Representatives, offer, sell, contract following actions with respect to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) 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, (iv) 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 (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement and the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of the Representative. The Company will not at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Underwriter that, in connection with each offering of Securities:
(a) The Company will file the Prospectus Supplement with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesUnderwriter, Rule 424(b)(5)subparagraph (5) thereof) not later than the second business day following the execution and delivery date of the Terms this Agreement.
(b) The So long as a prospectus relating to the Securities is required to be delivered under the Securities Act in connection with sales of the Securities by the Underwriter or any dealer, the Company will advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives Underwriter a reasonable opportunity to comment on any such proposed amendment or supplementsupplement thereto; and the Company will also advise the Representatives Underwriter promptly of the filing effectiveness of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) . If, at any time when a prospectus relating to the Securities is required to be delivered under the ActSecurities Act in connection with sales of the Securities by the Underwriter or any dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Securities Act, the Company promptly will notify the Underwriter of such event and promptly will prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Underwriter’s consent to, nor the Underwriters' Underwriter’s delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(ec) The Company will furnish to the Representatives Underwriter copies of the Registration Statement, including Statement (two of which will be signed and will include all exhibits), any related preliminary prospectus, any related preliminary prospectus supplementPreliminary Prospectus, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Underwriter requests, so long as a prospectus relating to the Securities is required to be delivered under the Securities Act in connection with sales of the Securities by the Underwriter or any dealer. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the date of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriter all such documents.
(fd) The Company will arrange for the qualification of the Securities and the shares of Stock issuable upon conversion of the Securities under the terms of the Indenture for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate Underwriter designates and will continue such qualifications in effect so long as required for the distribution; provideddistribution of the Securities, however, provided that the Company shall will not be obligated required (i) to qualify as a foreign corporation, (ii) to file any a general consent to service of process in any such state or (iii) to qualify as a foreign corporation take any action that would subject itself to taxation in any jurisdiction in which if it is not otherwise so qualifiedsubject.
(ge) During the period of five two years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, Underwriter as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives Underwriter (i) as soon as available, a copy of each such report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the business and financial condition of the Company as the Representatives Underwriter may reasonably request.
(hf) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company or unit investment trust or face amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incident to the performance of its obligations under this Agreement Agreement, including (i) all expenses in connection with the execution, issue, authentication, packaging and will reimburse initial delivery of the Underwriters for Securities, the preparation and printing of this Agreement, the Securities and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Securities; (ii) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate Underwriter designates and the printing of memoranda relating thereto, for ; (iii) any fees charged by investment rating agencies for the rating of the Securities and for Securities; (iv) expenses incurred in distributing the ProspectusProspectus and the Preliminary Prospectus (including any amendments and supplements thereto) to the Underwriter; (v) 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; (vi) the cost of registering and qualifying the Stock for trading on The New York Stock Exchange or other applicable exchange; and (vii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 4. The Company will reimburse the Underwriter for all travel expenses of the Underwriter and the Company’s officers and employees and any other expenses of the Underwriter and the Company in connection with attending or hosting meetings with prospective purchasers of the Securities.
(h) In connection with the offering, until the Underwriter shall have notified the Company of the completion of the distribution of the Securities, neither the Company nor any of its affiliates 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 affiliates has a beneficial interest, any preliminary prospectuses Securities or the Company’s common stock; and neither it nor any preliminary prospectus supplements to Underwritersof its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Securities or the Company’s common stock.
(i) For As soon as practicable, but not later than 16 months, after the date hereof, the Company will make generally available to their security holders an earnings statement covering a period of at least 12 months beginning at after the time later of execution (i) the effective date of the Terms Agreement Registration Statement relating to the Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date hereof, and ending one business day after (iii) the date of the Company’s 2004 10-K, which will satisfy the provisions of Section 11(a) of the Act.
(j) Between the date hereof and the Closing Date, the Company shall not do or authorize any act or thing that would have resulted in an adjustment of the conversion price of the Securities if the Securities had been issued on the date hereof.
(k) The Company shall reserve and keep available at all times, free of preemptive rights, sufficient shares of Stock for the purpose of enabling the Company to satisfy any obligations to issue shares of its Stock upon conversion of the Securities under the terms of the Indenture.
(l) The Company will notuse its best efforts to list, subject to notice of issuance, the shares of Stock issuable upon conversion of the Securities under the terms of the Indenture on The New York Stock Exchange.
(m) 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 Prospectus under the caption “Use of Proceeds” within 30 days after the Closing Date.
(n) During the period from the date hereof to 90 days after the Closing Date (the “Company Lock-Up Period”), the Company will not sell or cause to be offered, sold or contracted to sell, or otherwise dispose of, except as provided hereunder, any Stock or convertible securities that are convertible into shares of Stock without the prior written consent of Gxxxxxx Sachs (which consent shall be in its sole discretion), except that no such consent shall be necessary for (i) grants of employee stock options or other stock awards pursuant to the Representativesterms of Company option plans existing on the date of this Agreement or hereafter (provided that, offerduring the Company Lock-Up Period, sellany change to such plans does not provide for an increase in the aggregate number of shares of Stock available for grant thereunder) and issuances of shares of Stock pursuant to the exercise of such options, contract (ii) issuances of shares of Stock pursuant to sell the terms of the Company’s employee stock purchase plan existing on the date of this Agreement or otherwise dispose hereafter (provided that, during the Company Lock-Up Period, any change to such plans does not provide for an increase in the aggregate number of shares of Stock available to be issued thereunder), (iii) issuances of shares of Stock pursuant to the exercise of any publicly sold other employee stock options outstanding as of the date of this Agreement, (including pursuant to Rule 144A iv) issuances of shares of Stock upon the conversion or exchange of convertible or exchangeable securities of the Company outstanding as of the date of this Agreement, and (v) issuances of shares of Stock upon the conversion of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by under the terms of the Indenture. Notwithstanding the foregoing, it is understood that the Company and having a maturity may issue additional shares of more than one year from Stock pursuant to Section 3(a)(9) of the date Securities Act in connection with the exchange of issueshares of Stock for the Company’s outstanding Contingent Convertible Notes due 2014 (except that such issuances are limited to an aggregate of 29,000,000 shares of Stock).
Appears in 1 contract
Certain Agreements of the Company. The Company covenants and agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of SecuritiesInitial Purchaser as follows:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating prior to the Securities is required to be delivered under 90th day following the ActClosing Date, any event occurs involving the Company shall occur as a result of which the Prospectus Final Memorandum (as then amended or supplemented supplemented) would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will immediately notify the Initial Purchaser and prepare and file with furnish to the Commission Initial Purchaser an amendment or supplement which to the Final Memorandum that will correct such statement or omission omission. The Company will not at any time amend or an amendment which will effect such compliance. Neither supplement the Representatives' consent to, nor Final Memorandum (i) prior to having furnished the Underwriters' delivery of, any such Initial Purchaser with a copy of the proposed form of the amendment or supplement and giving the Initial Purchaser a reasonable opportunity to review the same or (ii) in a manner to which the Initial Purchaser or its counsel shall constitute a waiver of any of the conditions set forth in Section 5object.
(db) In order During the period referred to comply with the provisions of in Section 11(a) of the Act6(a), the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives Initial Purchaser, without charge, copies of the Registration Statement, Final Memorandum (including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementexhibits and documents incorporated by reference therein), the Prospectus Transaction Documents, and all amendments and or supplements to such documents, in each case case, as soon as reasonably available and in such quantities as are the Initial Purchaser may from time to time reasonably requestedrequest.
(c) At all times during the course of the private placement contemplated hereby and prior to the Closing Date, (i) the Company will make available to each offeree the Additional Offering Documents and such information concerning any other relevant matters as it or any of its affiliates possess or can acquire without unreasonable effort or expense, as determined in good faith by it or such affiliate, as applicable, (ii) the Company will provide each offeree the opportunity to ask questions of, and receive answers from, it concerning the terms and conditions of the offering and to obtain any additional information, to the extent it or any of its affiliates possess such information or can acquire it without unreasonable effort or expense (as determined in good faith by it or such affiliate, as applicable), necessary to verify the accuracy of the information furnished to the offeree, (iii) the Company will not publish or disseminate any material in connection with the offering of the Offered Notes except as contemplated herein or as consented to by the Initial Purchaser or in connection with the Company’s disclosure obligations under the Exchange Act, provided that no such disclosure under the Exchange Act would result in a requirement that the offering of the Notes be registered under §5 of the Securities Act, (iv) the Company will advise the Initial Purchaser promptly of the receipt by the Company of any communication from the SEC or any state securities authority concerning the offering or sale of the Offered Notes, (v) the Company will advise the Initial Purchaser promptly of the commencement of any lawsuit or proceeding to which the Company is a party relating to the offering or sale of the Offered Notes, and (vi) the Company will advise the Initial Purchaser of the suspension of the qualification of the Offered Notes for offering or sale in any jurisdiction, or the initiation or threat of any procedure for any such purpose.
(d) The Company will furnish, upon the written request of any Noteholder or of any owner of a beneficial interest in a Note, such information as is specified in paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective purchaser of such Note or interest therein who is a QIB and a Qualified Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Trustee for delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of such Note or beneficial interest therein by such holder or beneficial owner in reliance on Rule 144A unless, at the time of such request, the Trust is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 or is exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b).
(e) Except as otherwise provided in the Indenture, each Offered Note will contain a legend to the effect set forth in the Final Memorandum.
(f) The In connection with the application to list the Offered Notes on the Irish Stock Exchange, the Company will arrange for the qualification of the Securities for sale furnish from time to time any and the determination of their eligibility for investment under the laws all documents, instruments, information and commercially reasonable undertakings and publish all advertisements or other material that may be necessary in order to effect such listing and use commercially reasonable efforts to maintain such listing until none of such jurisdictions Notes is outstanding or until such time as payment of principal, interest and any additional amounts (if any) in respect of all such Notes have been duly provided for, whichever is earlier; provided that if such listing can no longer be reasonably maintained, the Company will use its commercially reasonable efforts to obtain and maintain the quotation for, or listing of, such Notes on such other stock exchange or exchanges in the European Union as the Representatives shall Initial Purchaser may reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedrequest.
(g) During Neither the period Company nor any of five years after its affiliates or any other Person acting on their behalf shall engage, in connection with the date offer and sale of the Offered Notes, in any Terms Agreementform of general solicitation or general advertising within the meaning of Rule 502(c) of Regulation D under the Securities Act, including, but not limited to, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives following:
(i) as soon as availableany advertisement, a copy of each report on Form 10-K article, notice or 10-Q other communication published in any newspaper, magazine or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), similar medium or mailed to stockholders, and broadcast over television or radio; and
(ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestany seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(h) The Company will pay all expenses incident shall not solicit any offer to buy from or offer to sell or sell to any Person any Offered Notes, except through the Initial Purchaser or with the consent of the Initial Purchaser and/or as otherwise specified in the Indenture at any time prior to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements Closing Date; on or prior to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will notshall not publish or disseminate any material other than the Additional Offering Documents consented to by the Initial Purchaser, without the prior consent Time of Sale Information and the Final Memorandum in connection with the offer or sale of the RepresentativesOffered Notes as contemplated by this Agreement, offerunless the Initial Purchaser shall have consented to the use thereof; if the Company makes any press release including “tombstone” announcements, sellin connection with the Transaction Documents, contract it shall permit the Initial Purchaser to sell review and approve such release in advance.
(i) The Company shall not take, or otherwise dispose permit or cause any of its affiliates to take, any publicly sold (including pursuant to Rule 144A action whatsoever which would have the effect of requiring the registration, under the Securities Act) United States dollar-denominated debt securities issued , of the offer or guaranteed sale of the Notes contemplated by the Time of Sale Information.
(j) The Company and having a maturity shall not take, directly or indirectly, any action designed to or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of more than one year the price of any Offered Note to facilitate the sale or resale of the Offered Notes.
(k) The Company shall apply the net proceeds from the date sale of issuethe Notes as set forth in the Final Memorandum under the heading “Use of Proceeds”.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, Underwriters one conformed signed or certified copy of the Registration Statementregistration statement or statements relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the Commission’s close of business on the second business day following the execution and delivery of the Terms AgreementAgreement or, if applicable, such earlier time as may be required by Rule 424(b).
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, Preliminary Prospectus or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; the Company will not undertake any such proposed amendment or supplement if the Representatives reasonably object in writing thereto; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof or of any order preventing or suspending the use of any Preliminary Prospectus or other Prospectus in respect of the Offered Securities, and will use its reasonable best efforts to prevent the issuance of any such stop order or of any order preventing or suspending the use of any preliminary or other Prospectus and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms Agreement, the Company will make generally available to its securityholders an earnings statement covering a period statement, which will satisfy the provisions of at least 12 months beginning after the later of (iSection 11(a) the effective date of the Registration Statement, Act and the rules and regulations thereunder (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreementincluding Rule 158).
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available available, and copies of the Prospectus and all amendments and supplements to the Prospectus not later than 1:00 p.m., New York City time, on the day following the date thereof, or as soon thereafter as practicable and, in each case in such quantities as are the Lead Underwriter reasonably requestedrequests. Unless otherwise specified in the Terms Agreement, the Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will use its reasonable efforts to arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment investment, under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company shall will not be obligated required to file qualify to do business in any jurisdiction where it is not now qualified or take any action which would subject it to general consent to or unlimited service of process or to qualify as a foreign corporation in any jurisdiction in which where it is not so qualifiednow subject.
(g) During the period of five three years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders shareholders for such year; and the Company will furnish to the Representatives (i) as soon as availableavailable should they be unavailable for free on EXXXX on the SEC website, a copy of each report Annual Report on Form 10-K or K, Quarterly Report on Form 10-Q or Q, Current Report on Form 8-K and definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), 1934 or mailed to stockholders, shareholders. Such documentation and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestbe furnished or made available electronically.
(h) The Unless otherwise specified in the Terms Agreement, the Company will pay all expenses incident to the performance of its obligations under the Terms Agreement (including the provisions of this Agreement and will reimburse the Underwriters Agreement), for any filing fees or other expenses (including reasonable fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale and any determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any applicable filing fee incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, the review by the National Association of Securities Dealers, Inc. of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Offered Securities and for expenses incurred in distributing the Prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus, any preliminary prospectuses and prospectuses, any preliminary prospectus supplements or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For Unless otherwise specified in the Terms Agreement, for a period beginning at the time of execution of the Terms Agreement and ending one business day after on the Closing Date, the Company will notif any Offered Debt Securities are being issued, without the prior consent of the RepresentativesLead Underwriter, offer, sell, the Company will not offer or contract to sell or, except pursuant to a commitment entered into prior to the date of the Terms Agreement, sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities denominated in the currency or currency unit in which the applicable Offered Debt Securities are denominated and issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
(j) The Company has prepared or will prepare a final term sheet, containing solely a description of the Securities, in form and substance approved by the Representatives and will file (if required) such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; the Company will file promptly all other material required to be filed by the Company with Commission pursuant to Rule 433(d) under the Act.
(i) The Company represents and agrees that, other than the final term sheet prepared and filed pursuant to this Section 4, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, other than one or more term sheets relating to the Offered Securities containing customary information, it has not made and will not make any offer relating to the Offered Securities that would not constitute a “free writing prospectus” as defined in Rule 405 under the Act; and
(iii) any such “free writing prospectus” and any electronic road show, the use of which has been consented to by the Company and the Representatives (including the final term sheet prepared and filed pursuant to this Section 4), is listed on Schedule B hereto.
(l) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending.
(m) The Company agrees that if at any time following the issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or 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 then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with Underwriter Information.
(n) The Company agrees that if at any time prior to the filing of the Prospectus, the Pricing Disclosure Package includes 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 then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives; provided, however, that this condition shall not apply with respect to any statements or omissions in the Pricing Disclosure Package made in reliance upon and in conformity with Underwriter Information.
(o) If by December 1, 2008 (the “Renewal Deadline”), any of the Offered Securities remain unsold by the Underwriters, the Company will file, if it has not already done so and is eligible to do so, a new shelf registration statement relating to the Offered Securities, in a form reasonably satisfactory to the Lead Underwriter and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) If at any time when Offered Securities remain unsold by the Underwriters the Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Offered Securities, in a form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable, and (iv) promptly notify the Representatives of such effectiveness. The Company will file take all other action necessary or appropriate to permit the Prospectus with the Commission pursuant to public offering and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery sale of the Terms AgreementOffered Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include any such new registration statement or post effective amendment, as the case may be.
(b) The Company will advise agrees to pay the Representatives promptly of any proposal required Commission filing fees relating to amend or supplement the Registration Statement or Offered Securities within the Prospectus time required by Rule 456(b)(1) under the Act without regard to the proviso therein and will afford otherwise in accordance with Rules 456(b) and 457(r) under the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issuedAct.
(c) IfThe Company will furnish to the Representatives copies of the Registration Statement (two of which will be signed and will include all exhibits thereto and documents incorporated by reference), and, will furnish to the Underwriters in New York City, without charge, prior to 10:00 A.M. Eastern Standard Time on the second business day next following the execution and delivery of this Agreement and during the period mentioned in Section 7(d) below, as many copies of the General Disclosure Package and Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.
(d) If at any time when a prospectus relating to following the Securities is required to be delivered under the Act, any date hereof there occurs an event occurs or development as a result of which an Issuer Free Writing Prospectus conflicts or would conflict with the information contained in the Registration Statement, the General Disclosure Package, or the Prospectus as then amended or supplemented includes or would include an untrue statement of a material fact or omits or would omit to state any a material fact necessary in order to make the statements therein not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement, or omission. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with information relating to any Underwriter furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 9(b) hereof.
(e) If, during such period after the first date of the public offering of the Offered Securities, the Prospectus or the General Disclosure Package is required by law to be delivered in connection with sales by any Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the General Disclosure Package or the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading when the General Disclosure Package or Prospectus is delivered to a purchaser, or if if, in the opinion of counsel for the Underwriters, it is necessary at any time to amend or supplement the Prospectus and the General Disclosure Package to comply with the Act, applicable law the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission an amendment and furnish, at its own expense, to the Underwriters and to any other dealers (whose names and addresses the Representatives will furnish to the Company) to which Offered Securities may have either been sold by or supplement on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus and the General Disclosure Package which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' to or delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 58.
(df) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of Before amending or supplementing the Registration Statement, (ii) the effective date of Prospectus, or the most recent post-effective amendment General Disclosure Package, to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Registration Statement, including all exhibits, Representatives reasonably object and to file with the Commission within the applicable period specified in Rule 424(b) under the Act any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements required to be filed pursuant to such documentsRule, in each case as soon as available and in such quantities as are reasonably requestedprovided that nothing herein shall prevent the Company from filing any amendment or supplement which the Company’s outside counsel has advised the Company that it is required to file under applicable law.
(fg) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in connection therewith the Company shall not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any jurisdiction or to qualify as a foreign corporation subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestsubject.
(h) The Company will pay all expenses incident make generally available to its securityholders no later than 90 days after the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification close of the Registered Securities for sale period covered thereby, an earnings statement (in form complying with the provisions of Rule 158 under the laws of such jurisdictions as Act) covering the Representatives may reasonably designate and twelve month period beginning not later than the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating first day of the Securities and for expenses incurred Company’s fiscal quarter next following the “effective date” (as defined in distributing said Rule 158) of the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to UnderwritersRegistration Statement which will satisfy the provisions of Section 11(a) of the Act.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day 60 days after the Closing Datedate of this Agreement (the “Lock-up Period”), the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of Wachovia Capital Markets, LLC, except for (i) issuances upon conversion or exercise of securities outstanding on the date of this Agreement, issuances of Securities pursuant to the Company’s employee stock purchase plan in effect on the date of this Agreement and described in the Prospectus and the General Disclosure Package, grants of employee stock options, shares of restricted stock and other awards pursuant to the terms of a plan described in the Prospectus and the General Disclosure Package, issuances of Securities pursuant to exercise of options, in each case outstanding on the date of this Agreement, issuances of Securities pursuant to the Company’s dividend reinvestment and share purchase plan in effect on the date of this Agreement and described in the Prospectus and the General Disclosure Package, or issuances of Securities to members of CSE SNF Holding LLC who exercise rights to cause the Company to redeem their interests as described in the Prospectus and the General Disclosure Package; or (ii) resale registration statements or prospectus supplements thereto relating to the Company’s convertible debentures outstanding on the date of this Agreement and Securities issued in connection with (i) clause of this Section 7(i).
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of the Company’s obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Offered Securities under the Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the Prospectus, the General Disclosure Package and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Representatives and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Offered Securities to the Representatives, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky memorandum in connection with the offer and sale of the Offered Securities under state securities laws and all expenses in connection with the qualification of the Offered Securities for offer and sale under state securities laws as provided in Section 7(f) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters (up to $5,000 in the aggregate) incurred in connection with the review and qualification of the offering of the Shares by the National Association of Securities Dealers, Inc., (v) all costs and expenses incident to listing the Offered Securities on the New York Stock Exchange, (vi) the cost of printing certificates representing the Offered Securities, (vii) the costs and charges of any publicly sold transfer agent, registrar or depositary, (including pursuant to Rule 144A viii) the costs and expenses of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Offered Securities, including, without limitation, expenses associated with the production of road show slides and graphics, reasonable travel and lodging expenses of the representatives and officers of the Company and having any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities (including fifty percent (50%) of the cost of any private aviation), (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section and Section 9 entitled “Indemnification and Contribution,” the Underwriters will pay all of their costs and expenses, including fees and disbursements of its counsel, stock transfer taxes payable on resale of any of the Offered Securities by it and any advertising expenses connected with any offers they may make.
(k) The Company will comply with all applicable securities and other applicable laws, rules and regulation, including, without limitation, the Sxxxxxxx-Xxxxx 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 Sxxxxxxx-Xxxxx Act.
(l) The Company will use its reasonable best efforts to meet the requirements to qualify, for its taxable year ending December 31, 2006 and thereafter, for taxation as a maturity of more than one year from REIT under the date of issueCode.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file furnish to the Representatives copies of the Registration Statement (four of which will be signed and will include all exhibits thereto and documents incorporated by reference), and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus with and all amendments and supplements to such documents, in each case in such quantities as the Commission pursuant Representatives reasonably request. The Company will use its best efforts to and in accordance with Rule 424(b)(2) (orfurnish the Prospectus on or prior to 3:00 P.M., if applicable and if consented to by the RepresentativesNew York time, Rule 424(b)(5)) not later than on the second business day following the execution and delivery of the Terms this Agreement. All other such documents shall be so furnished as soon as available.
(b) The Company will advise the Representatives promptly of any proposal to amend Before amending or supplement supplementing the Registration Statement or the Prospectus and will afford Prospectus, to furnish to the Representatives a reasonable opportunity copy of each such proposed amendment or supplement and not to comment on file any such proposed amendment or supplement; supplement to which the Representatives reasonably object and to file with the Commission within the applicable period specified in Rule 424(b) under the Act any prospectus required to be filed pursuant to such Rule, provided that nothing herein shall prevent the Company will also advise the Representatives promptly of the from filing of any such amendment or supplement and of which the institution by Company’s outside counsel has advised the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts Company that it is required to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issuedfile under applicable law.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' to or delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 57.
(d) In order to comply with The Company will arrange for the provisions of Section 11(a) qualification of the ActOffered Securities for sale under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution; provided, that in connection therewith the Company will, shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(e) As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (iiStatement which will satisfy the provisions of Section 11(a) the effective date of the most recent post-effective amendment to Act. For the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission purpose of the Company's most recent Annual Report on Form 10-K prior to preceding sentence, “Availability Date” means the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 45th day after the end of each the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal quarter is the last quarter of the Company’s fiscal year, a copy of its annual report to stockholders for such year; and “Availability Date” means the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business 90th day after the Closing Date, the Company will not, without the prior consent end of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issuesuch fourth fiscal quarter.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives CSFBC promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives CSFBC a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives CSFBC promptly of the filing of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify CSFBC of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' CSFBC's consent to, (c) nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iiiii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including six of which will be signed and will include all exhibits, any related preliminary prospectus, any each related preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedCSFBC requests. The Prospectus shall be furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other such documents should be furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall CSFBC reasonably designate designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counselcounsel to the Underwriters) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate CSFBC designates and the printing of memoranda relating thereto, for any the filing fee incident to, and the reasonable fees charged and disbursements of counsel to the Underwriters in connection with, the review by investment rating agencies for the rating National Association of Securities Dealers, Inc. of the Securities Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities, for expenses incurred in distributing the Prospectus, any preliminary prospectuses and the Prospectus (including any preliminary prospectus amendments and supplements thereto) to the Underwriters.
(ih) For a period beginning at of 60 days after the time of execution date of the Terms Agreement and ending one business day after the Closing DateProspectus, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly sold (disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFBC, except grants of employee or director stock options, including pursuant to Rule 144A a stock purchase plan, pursuant to the terms of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from plan in effect on the date hereof, issuances of issueSecurities pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof or issuances of Securities pursuant to the Company's 401(k) plan as in effect on the date hereof.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters each Underwriter that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each the offering of the Offered Securities:
(a) The Company will prepare the Prospectus in a form approved by the Representatives and file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2424(b) (or, if applicable and if consented to by within the Representatives, time prescribed under Rule 424(b)(5424(b)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford not effect any such amendment or supplementation to which the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; have reasonably objected in writing, and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement supplement; provided, however, that the foregoing shall not apply to any of the Company's periodic filings with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act; and the Company will also advise the Representatives promptly of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by an Underwriter or any dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' an Underwriter's delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not Not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives each Underwriter copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the requesting Underwriter reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for use its best efforts, in cooperation with the qualification of Underwriters, to qualify the Offered Securities for sale and the determination of to determine their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so qualifiedsubject.
(g) During the period of five years after the date of any Terms this Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, Underwriter as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives each Underwriter (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with or furnished to the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, provided that, any such report or proxy statement shall be deemed to be furnished when posted electronically on a web site designated by the Company to which the Underwriters have access, and (ii) from time to time, such other information concerning the Company as the Representatives requesting Underwriter may reasonably request, subject to appropriate confidentiality undertakings reasonably satisfactory to the Company and the right of the Company to withhold information if required by applicable law.
(h) During the period of two years after the Closing Date, the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is required to be registered under Section 8 of the Investment Company Act.
(i) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement and will reimburse the Indenture, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities, the preparation and printing of this Agreement, the Offered Securities, the Indenture, the Prospectus and any amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities (other than, in each case, the professional fees and expenses of counsel to the Underwriters for except as provided below), (iii) any filing fees or other expenses (including fees and disbursements of counselcounsel to the Underwriters, which fees and disbursements shall not exceed $5,000) incurred by them in connection with qualification of the Registered Offered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto; (iv) any applicable filing fee incident to the review by the National Association of Securities Dealers, for Inc. of the terms of the offering of the Offered Securities and the fees and disbursements of counsel to the Underwriters in connection therewith (which counsel fees shall be included in the cap set forth above), (v) any fees charged by investment rating agencies for the rating of the Securities Offered Securities, and for (vi) any expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectuses, or any preliminary prospectus supplements (including any amendments and supplements thereto) to the Underwriters.
(ij) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issueissue (other than debt securities the interest on which is excluded from gross income for federal income tax purposes under the Internal Revenue Code of 1986, as amended) or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives, but in no event ending later than fifteen (15) days from the Closing Date.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Offering Document and, except as contemplated by the Prospectus and next sentence, will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and of supplementation without the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) Representative’s consent. If, at any time when a prospectus relating prior to the completion of the resale of the Offered Securities is required to be delivered under by the Act, Purchasers any event occurs as a result of which the Prospectus Offering Document 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, not misleading, or if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify the Representative of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Representative copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requestedthe Representative requests, and the Company will furnish to the Representative on the date hereof copies of the Offering Document. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each of the other Purchasers and, upon request of holders of the Offered Securities, to such holders, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions states in the United States as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distributionresale of the Offered Securities by the Purchasers; provided, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or become subject to qualify as a foreign corporation taxation in any jurisdiction in which it is not so qualifiedsuch state.
(gd) During So long as the period of five years after Offered Securities, Exchange Securities or Private Exchange Securities (as defined in the date of Registration Rights Agreement) are outstanding and held by any Terms AgreementPurchaser or its affiliates, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if anyRepresentative, as soon as practicable after the end of each fiscal year, a copy of its any annual report to stockholders shareholders for such yearyear that is mailed to shareholders; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, Representative such other information concerning the Company as the Representatives Representative may reasonably request from time to time, subject to any confidentiality arrangements reasonably requested by the Company.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to the Representative and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Securities.
(f) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) that are subsidiaries of Parent to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities, the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and, as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) of The Nasdaq Stock Market, Inc. and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities, (v) for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate Representative designates and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities and (vii) for expenses incurred in distributing preliminary offering circulars and the Prospectus, Offering Document (including any preliminary prospectuses amendments and supplements thereto) to the Purchasers. The Company will reimburse the Purchasers an amount equal to any preliminary prospectus supplements to Underwritersreasonable travel and other expenses of the officers and employees of the Company or the Subsidiaries incurred by the Purchasers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(i) In connection with the offering, until the Representative shall have notified the Company of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates 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 affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period beginning at of 180 days after the time of execution date of the Terms Agreement and ending one business day after initial offering of the Closing DateOffered Securities by the Purchasers, without the prior written consent of the Representative, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge, or otherwise dispose of of, directly or indirectly, any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act to cease to be applicable to the offer and sale of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel the counsel for the Underwriters, Underwriters designated in the Terms Agreement one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. The terms “supplement” and “amendment” as used in this Agreement shall include, without limitation, all documents filed by the Company with the Commission subsequent to the date of the Prospectus which are deemed to be incorporated by reference in the Prospectus. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall will not be obligated required in connection therewith to file any register or qualify as a foreign corporation where it is not now so qualified or to execute a general consent to service of process or to qualify as a foreign corporation in any jurisdiction or subject itself to taxation in which any jurisdiction where it is not then so qualifiedsubject.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this the Terms Agreement and will reimburse the Underwriters for any expenses (including reasonable fees and disbursements of counsel) reasonably incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating filing fee of the National Association of Securities Dealers, Inc. relating to the Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(ih) For a period beginning at the time of execution of period, if any, specified in the Terms Agreement and ending one business day after the Closing DateAgreement, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge, or otherwise dispose of, directly or indirectly, any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares without the prior written consent of the Representatives, or publicly disclose the intention to make any publicly sold such offer, sale, pledge or disposition, except (including i) grants of employee or director stock options, stock appreciation rights or restricted stock grants pursuant to Rule 144A the terms of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from plan in effect on the date of issuethe Terms Agreement, issuances of Ordinary Shares pursuant to the exercise of such options or the exercise of any convertible security, warrants or other stock options outstanding at the date of the Terms Agreement or issuable under the Company’s savings plan, or the registration of such Ordinary Shares by filing with the Commission of a registration statement on Form S-8 and (ii) the issuance of up to 1,000,000 Ordinary Shares in connection with acquisition transactions; provided that during such period the Company may also file with the Commission a universal shelf registration statement but may not issue any Ordinary Shares pursuant thereto.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx Xxxxxxx Xxxxxxx & XllixXxxxxxxx, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(cb) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will 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. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(dc) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 18 months, after the date of each Terms Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the most recent effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, which will satisfy the provisions of Section 11(a) of the Act (including, at the option of the Company, Rule 158 of the Rules and Regulations under the Act).
(ed) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus supplement and all amendments and supplements to such documents, in each case as soon as available available, and copies of the Prospectus and all amendments and supplements to the Prospectus not later than 10:00 A.M., New York City time, on the day following the date thereof. The Company will furnish each of such documents in such quantities as are reasonably requested.
(fe) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions within the United States as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company shall will not be obligated required to file qualify to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to general consent to or unlimited service of process or to qualify as a foreign corporation in any jurisdiction in which where it is not so qualifiednow subject.
(gf) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report Annual Report on Form 10-K or K, Quarterly Report on Form 10-Q or Q, Current Report on Form 8-K and definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), ) or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hg) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities, for the filing fee of the National Association of Securities Dealers, Inc. relating to the Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(ih) For a period beginning at the time of execution of the Terms Agreement and ending one business day after on the Closing Date, the Company will notif any Debt Securities are being issued, without the prior consent of the Representatives, offer, sell, the Company will not offer or contract to sell or, except pursuant to a commitment entered into prior to the date of the Terms Agreement, sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of debt securities denominated in the currency or currency unit in which the Securities Act) United States dollar-are denominated debt securities and issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Underwriting Agreement (Philip Morris Companies Inc)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Underwriter that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2424(b) (2) (or, if applicable and if consented to by the RepresentativesCSFBC, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement. The Company will advise CSFBC promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives CSFBC promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without CSFBC's consent which shall not be unreasonably withheld or delayed; and the Company will also advise the Representatives CSFBC promptly of the effectiveness of any amendment or supplementation of the Registration Statement or the filing of any such amendment or supplement to the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its reasonable best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by the Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify CSFBC of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' CSFBC's consent to, nor the Underwriters' Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 monthsthe Availability Date (as defined below), after the date of each Terms Agreement, Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date Effective Date of the Registration Statement, (iiStatement which will satisfy the provisions of Section 11(a) the effective date of the most recent post-effective amendment to Act. For the Registration Statement to become effective prior to purpose of the date preceding sentence, "Availability Date" means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Terms Agreement and (iii) Effective Date, except that, if such fourth fiscal quarter is the date of filing with the Commission last quarter of the Company's most recent Annual Report on Form 10-K prior to fiscal year, "Availability Date" means the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable 90th day after the end of each such fourth fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably requestquarter.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Samples: Underwriting Agreement (Young Broadcasting Inc /De/)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchaser that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives CSFB promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a Offering Document which shall not be disapproved by CSFB promptly after reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) notice thereof. If, at any time when a prospectus relating prior to the completion of the resale of the Offered Securities is required to be delivered under by the ActPurchaser, any event occurs as a result of which the Prospectus Offering Document 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, not misleading, or or, if it is necessary at any such time to amend or supplement the Prospectus Offering Document to comply with the Actany applicable law, the Company promptly will prepare notify CSFB of such event and file with the Commission promptly will prepare, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' CSFB’s consent to, nor the Underwriters' Purchaser’s delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives CSFB copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are CSFB requests, and if, at any time prior to the expiration of six months after the date of the Offering Circular, any event shall have occurred as a result of which the Offering Circular 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 Offering Circular is delivered, not misleading, or, if for any other reason it shall be necessary or desirable during such same period to amend or supplement the Offering Circular, to notify you and upon your request to prepare and furnish without charge to each Purchaser and to any dealer in securities as many written and electronic copies as you may from time to time reasonably requestedrequest of an amended Offering Circular or a supplement to the Offering Circular which will correct such statement or omission or effect such compliance. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to CSFB and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Purchaser all such documents.
(fc) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate CSFB designates and will continue such qualifications in effect so long as required for the distribution; providedresale of the Offered Securities by the Purchaser, however, provided that the Company shall will not be obligated required to qualify as a foreign corporation or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction such jurisdiction.
(d) During the period of five years after the Closing Date, the Company will furnish or will make generally available via the EXXXX System to CSFB promptly upon their becoming available, copies of (i) all reports or other publicly available information that the Company shall mail or otherwise make available to its public stockholders and (ii) all reports, financial statements and proxy or information statements filed by the Company with the Commission or any national securities exchange and such other publicly available information concerning the Company and its subsidiaries including, without limitation, press releases, as the Purchaser may reasonably request.
(e) During the period of two years after the Closing Date, the Company will, upon request, furnish to CSFB and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in which it is not so qualifiedRule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of five two years after the date of any Terms AgreementClosing Date, neither the Company nor any Subsidiary Guarantor will furnish be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to the Representatives and, upon request, to each be registered under Section 8 of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Investment Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident incidental to the performance of its obligations under this Agreement Agreement, the Indenture, and will reimburse the Underwriters Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities; (iii) the cost of qualifying the Offered Securities for trading in The PortalSM Market (“PORTAL”) and any expenses incidental thereto; (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities; (v) any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate CSFB designates and the printing of memoranda relating thereto, for (vi) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities; and for (vii) expenses incurred in distributing the Prospectus, Offering Document (including any preliminary prospectuses amendments and supplements thereto) to the Purchaser. The Company will also pay or reimburse the Purchaser (to the extent incurred by it) for all travel expenses of the Purchaser and the Company’s officers and employees and any preliminary prospectus supplements to Underwritersother expenses of the Purchaser and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchaser.
(i) In connection with the offering, until CSFB shall have notified the Company and the other Purchaser of the completion of the resale of the Offered Securities, neither the Company nor any of its affiliates 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 affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period beginning at of 90 days after the time of execution date of the Terms Agreement and ending one business day after initial offering of the Closing DateOffered Securities by the Purchaser, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of of, directly or indirectly, any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities securities, other than the Exchange Securities, issued or guaranteed by the Company and having a maturity of more than one year from the date of issue. The Company will not at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Offered Securities.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives CSFBC promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford at any time prior to the Representatives receipt by the Company of a reasonable opportunity to comment on any such proposed amendment or supplementNotice of Completion (as defined below); and the Company will also advise the Representatives CSFBC promptly of the filing of any such amendment or supplement and of the institution by the Commission at any time prior to the receipt by the Company of a Notice of Completion of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when before the receipt by the Company from the Representative of a prospectus relating to the Securities is required to be delivered under the ActNotice of Completion, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify CSFBC of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither .
(d) (i) In the Representatives' consent tocase of amendments or supplements to the Registration Statement or the Prospectus which are not to be effected by means of a filing with the Commission of a document to be incorporated by reference therein, nor and are to be made prior to the Underwriters' delivery ofreceipt by the Company of a Notice of Completion, the Company will not effect any such amendment or supplement without the consent of the Representative on behalf of the Underwriters, such consent not to be unreasonably withheld or delayed. Neither the consent of the Representative, nor the delivery of any such amendment or supplement by any Underwriter, shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus Final Prospectus, properly completed, with the Commission pursuant to and in accordance with Rule 424(b)(2subparagraph (2) (or, if applicable and if consented to by the RepresentativesRepresentative, Rule 424(b)(5subparagraph (5)) not of Rule 424(b) no later than the second business day following the execution and delivery date it is first used. The Company will advise the Representative promptly of the Terms Agreementany such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly Representative promptly, in writing, of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the Representative’s reasonable consent; and the Company will also advise the Representatives Representative promptly of the filing of any such amendment or supplement supplementation of the Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities Notes is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the 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, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify the Representative of such event and will promptly prepare and file with the Commission (subject to the Representative’s prior review pursuant to Section 5(b)), at its own expense, an amendment or supplement which will correct such statement or omission omission, or an amendment which will effect such compliance. Neither the Representatives' Representative’s consent to, nor the Underwriters' Underwriters delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order The Company will cause the Trust to comply with the provisions of Section 11(a) of the Act, the Company willmake generally available to Noteholders, as soon as practicable, but not no later than 16 months, sixteen months after the date of each Terms Agreementhereof, make generally available to its securityholders an earnings statement of the Trust covering a period of at least 12 twelve consecutive months beginning after the later of (i) the effective date of the Registration Statement, registration statement relating to the Notes and (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iiiand, in each case, satisfying the provisions of Section 11(a) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementAct (including Rule 158 promulgated thereunder).
(e) The Company will furnish to the Representatives Underwriters copies of each Prospectus, the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus Statement and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. The Final Prospectus shall be furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other such documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Securities Notes for offering and sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall Representative may reasonably designate and will continue such qualifications in effect so long as required for the distributiondistribution of the Notes; provided, however, provided that in connection therewith the Company shall not be obligated required to qualify as a foreign corporation to do business or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During the For a period of five years after from the date of any Terms Agreement, this Agreement until the retirement of the Notes (i) the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anycopies of each certificate and the annual statements of compliance delivered to the Indenture Trustee pursuant to Section 3.09 of the Indenture and Sections 3.10 and 3.11 of the Sale and Servicing Agreement and the annual independent certified public accountant’s servicing reports furnished to the Trust pursuant to Section 3.12 of the Sale and Servicing Agreement, by first-class mail as soon as practicable after such statements and reports are furnished to the end Indenture Trustee or the Trust, as the case may be, and (ii) such other forms of each fiscal yearperiodic certificates or reports as may be delivered to the Indenture Trustee, a copy of its annual report to stockholders for such year; the Owner Trustee or the Noteholders under the Indenture, the Sale and Servicing Agreement or the other Basic Documents.
(h) So long as any Note is outstanding, the Company will furnish to the Representatives Representative by first-class mail as soon as practicable, (i) as soon as availableall documents distributed, a copy or caused to be distributed, by the Company to the Noteholders, (ii) all documents filed or caused to be filed by the Company with the Commission pursuant to the Exchange Act or any order of each report on Form 10-K or 10-Q or definitive proxy statement the Commission thereunder and (iii) such other information in the possession of the Company filed with concerning the Commission under Trust as the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) Representative from time to time, such other information concerning the Company as the Representatives time may reasonably request.
(hi) The Subject to the provisions of Section 10 hereof, the Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters (if and to the extent incurred by them) for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities Notes for sale in jurisdictions that the Representative may designate pursuant to Section 5(f) hereof and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may Representative reasonably designate designates and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities Notes, for any travel expenses of the officers and employees of the Underwriters and any other expenses of the Underwriters in connection with attending or hosting meetings with prospective purchasers of the Notes and for expenses incurred in distributing the Prospectus, Prospectus (including any preliminary prospectuses amendments and any preliminary prospectus supplements to Underwritersthereto).
(ij) For To the extent, if any, that the rating provided with respect to the Notes by Xxxxx’x Investors Service, Inc. (“Xxxxx’x”), Standard & Poor’s, a period beginning at division of The XxXxxx-Xxxx Companies, Inc. (“Standard & Poor’s”), or Fitch Ratings (“Fitch” and, together with Standard & Poor’s and Moody’s, the time “Rating Agencies”) is conditional upon the furnishing of execution documents or the taking of any other action by the Terms Agreement Company, the Company shall furnish such documents and ending one business day after take any such other action.
(k) On or before the Closing Date, the Company will not, without and AHFC shall annotate and indicate unambiguously in the prior consent computer records of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity AHFC relating to the Receivables to show the Trust’s absolute ownership of more the Receivables, and from and after the Closing Date neither the Company nor AHFC shall take any action inconsistent with the Trust’s ownership of such Receivables, other than one year from as permitted by the date of issueSale and Servicing Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2005-6 Owner Trust)
Certain Agreements of the Company. The Company hereby agrees with Xxxxxx that:
3.1 During the several Underwriters that it will Placement Period, neither the Company or any affiliate of the Company nor anyone acting on behalf of the Company or any such affiliate, other than Xxxxxx, shall, directly or indirectly, offer or sell, or attempt to offer, sell or dispose of, any of the Shares, or solicit any offer to buy, or otherwise approach or negotiate in respect of, any of the Shares.
3.2 As soon as practicable after the date hereof, but not later than five (5) business days prior to the Closing Date, the Company shall furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy Xxxxxx as many copies of the Registration Statement, Private Placement Memorandum and of each revision or amendment thereof or supplement thereto (including all exhibitsexhibits included therewith) as Xxxxxx may reasonably request.
3.3 If any event shall occur as a result of which it is necessary, in the form it became effective and opinion of all amendments thereto and thatXxxxxx, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity Private Placement Memorandum in order to comment on correct any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Company shall forthwith prepare and furnish to Xxxxxx, a reasonable number of copies of an amendment of or if it is supplement to the Private Placement Memorandum (in form and substance satisfactory to Xxxxxx), so that, as so amended or supplemented, the Private Placement Memorandum will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company will not at any time amend or supplement the Private Placement Memorandum (i) prior to amend having furnished Xxxxxx with a copy of the Prospectus to comply with proposed form of the Act, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement and giving Xxxxxx a reasonable opportunity to review the same or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) in a manner to which Xxxxxx or its counsel shall reasonably object.
3.4 The Company shall furnish such information, execute such instruments and take such action, if any, as may be required to effect the effective date placement of the most recent post-effective amendment to Shares under the Registration Statement to become effective prior to securities laws of each jurisdiction in which the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as Shares are reasonably requested.
(f) The Company will arrange for the qualification of the Securities offered for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distributionor sold; provided, however, that the Company shall not be obligated required to file 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 consent to or unlimited service of process or to qualify as a foreign corporation in any jurisdiction in which where it is not now so qualifiedsubject.
(g) During 3.5 The Company shall furnish or make available to Xxxxxx and its counsel such additional documents and information regarding the period Company and its affairs as Xxxxxx may from time to time reasonably request, including any and all documentation reasonably requested in connection with its due diligence efforts regarding information in the Private Placement Memorandum and in order to evidence the accuracy or completeness of five years after any of the conditions contained in this Placement Agent Agreement; and all actions taken by the Company to authorize the issuance and sale of the Shares shall be reasonably satisfactory in form and substance to Xxxxxx.
3.6 The Company shall, at all times upon reasonable request from the date hereof through the Closing Date, (i) make available to each subscriber or its advisers, or both, prior to acceptance of any Terms Agreementits subscription, such information (in addition to that contained in the Private Placement Memorandum) concerning the offering, the Company will furnish to the Representatives and, upon request, to each of the and any other Underwriters, if any, relevant matters as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K it possesses or 10-Q can acquire without unreasonable effort or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholdersexpense, and (ii) from time provide each subscriber or its advisers, or both, prior to timeacceptance of its subscription, such other information concerning the opportunity to ask questions of, and receive answers from, the Company as the Representatives may reasonably requestwith respect to such matters.
(h) 3.7 The Company will pay all expenses incident not at any time issue a press release to announce the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification offering or placement of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
Shares (i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of Xxxxxx, (ii) prior to having furnished Xxxxxx with a copy of the Representatives, offer, sell, contract proposed form of the press release and giving Xxxxxx a reasonable opportunity to sell review and comment upon the same or otherwise dispose (iii) in a manner to which Xxxxxx or its counsel shall reasonably object. Any such press release shall comply with the requirements of any publicly sold (including pursuant to Rule 144A of 135c under the Securities Act) .
3.8 The Company shall file with The National Association of Securities Dealers, Inc. and/or the United States dollar-denominated debt securities Securities and Exchange Commission (the "Commission") all necessary filings in respect of the issuance and sale of the Shares being issued or guaranteed and sold by the Company and having the listing thereof on The NASDAQ Stock Market and shall provide to Xxxxxx and its legal counsel a maturity copy of more than one year from the date of issue.all such definitive filings (and any
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration StatementStatement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesLead Underwriter, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) Before amending or supplementing the Registration Statement or the Prospectus, the Company will furnish the Lead Underwriter a copy of such proposed amendment or supplement, and will not file any such proposed amendment or supplement to which the Lead Underwriter reasonably objects. The Company will advise the Representatives promptly Lead Underwriter of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issuedthereof.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Lead Underwriter of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(d) In order As soon as practicable the Company will make generally available to comply with its securityholders an earning statement covering a period of 12 months beginning after the date hereof which will satisfy the provisions of Section 11(a) of the Act, Act and the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement Rules and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms AgreementRegulations.
(e) The Company will furnish to the Representatives Representatives, without cost, copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementPreliminary Prospectus, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Lead Underwriter reasonably requestedrequests.
(f) The Company will arrange for endeavor to qualify the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall Lead Underwriter reasonably designate requests and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under the Terms Agreement (including the provisions of this Agreement and will reimburse the Underwriters Agreement), for any filing fees or other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives Lead Underwriter may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities (if they are debt securities/first mortgage bonds or preferred stock), for any applicable filing fee incident to, the review by the National Association of Securities Dealers, Inc. of the Registered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of Registered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and Preliminary Prospectuses or any preliminary prospectus other amendments or supplements to the Prospectus to the Underwriters.
(ih) For a period beginning at If the time of execution of the Terms Agreement and ending one business day after the Closing DateOffered Securities are debt securities/first mortgage bonds or preferred stock, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities securities/first mortgage bonds issued or guaranteed by the Company and having a maturity of more than one year from the date of issueissue (if the Offered Securities are debt securities/first mortgage bonds) or any series of preferred stock issued (if the Offered Securities are preferred stock), without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date specified under “Blackout” in the Terms Agreement.
(i) If the Offered Securities are Common Stock or are convertible, exchangeable or exercisable into Common Stock, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Common Stock or securities convertible into or exchangeable or exercisable for any shares of its Common Stock, without the prior written consent of the Lead Underwriter for a period beginning at the time of execution of the Terms Agreement and ending the number of days after the Closing Date specified under “Blackout” in the Terms Agreement, except grants of employee stock options pursuant to the terms of a plan in effect on the date of the Terms Agreement, issuances of Common Stock pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date of the Terms Agreement.
Appears in 1 contract
Samples: Debt Securities Terms Agreement (El Paso Electric Co /Tx/)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel counsel for the Underwriters, one conformed signed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)424(b) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' ’ consent to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 55 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration StatementStatement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Representatives may reasonably requestedrequest. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company and its subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file any a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedjurisdiction.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("the “Exchange Act"), ”) or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and prospectus, any preliminary prospectus supplement or any other amendments or supplements to the Prospectus to the Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the The Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of any publicly sold (including pursuant of, directly or indirectly, or file with the Commission a registration statement under the Act relating to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of the Representatives for a period beginning at the date of this Agreement and ending at the later of the Closing Date or the lifting of trading restrictions by the Representatives.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesCSFBC, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement.
(b) The For so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Company will advise the Representatives CSFBC promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives CSFBC a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives CSFBC promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend or supplement the Prospectus to comply with the Act, the Company promptly will notify CSFBC of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' CSFBC's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56 hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives Underwriters copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are the Underwriters reasonably requestedrequests. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate CSFBC designates and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(g) During So long as the period of five years after the date of any Terms AgreementOffered Securities remain outstanding, the Company will furnish to the Representatives CSFBC and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Securities and for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriters.
(i) For a period beginning at the time of execution of the Terms Agreement and ending one business day after the Closing Date, the Company will not, without the prior consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue.furnish
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the RepresentativesCSFB and Lxxxxx, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of the Terms this Agreement. The Company will advise CSFB and Lxxxxx promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives CSFB and Lxxxxx promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any not effect such proposed amendment or supplementsupplementation without the consent of CSFB and Lxxxxx; and the Company will also advise the Representatives CSFB and Lxxxxx promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify CSFB and Lxxxxx of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent of CSFB and Lxxxxx to, nor the Underwriters' ’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's ’s most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the Registration Statement, including in the form it became effective, (two of which will be signed and will include all exhibits), any related preliminary prospectus, any each related preliminary prospectus or preliminary prospectus supplement, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are CSFB and Lxxxxx reasonably requestedrequest. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall CSFB and Lxxxxx reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that in connection therewith the Company shall not be obligated required to file qualify as a foreign corporation or to take any action that would subject it to a general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualifiedsuch jurisdiction.
(g) During the period of five years after the date of any Terms Agreementhereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives CSFB and Lxxxxx may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale under the laws of such jurisdictions as the Representatives may CSFB and Lxxxxx reasonably designate and the printing of memoranda relating thereto, for any fees charged the filing fee incident to the review, if any, by investment rating agencies for the rating National Association of Securities Dealers, Inc. of the Offered Securities, for any travel expenses of the Company’s officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectuspreliminary prospectuses, any preliminary prospectuses and any preliminary prospectus supplements and the Prospectus (including any amendments and supplements thereto) to the Underwriters.
(i) For a period beginning at of 90 days after the time of execution date of the Terms Agreement and ending one business day after initial public offering of the Closing DateOffered Securities, the Company will not, without the prior consent of the Representatives, not offer, sell, contract to sell sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFB and Lxxxxx, except (A) grants of employee stock options pursuant to the terms of a plan in effect on the date hereof, (B) issuances of Securities pursuant to the exercise of any publicly sold employee stock options outstanding on the date hereof, (including C) issuances of Securities pursuant to Rule 144A the Company’s omnibus incentive compensation plan, dividend reinvestment plan, employee stock purchase plan, retirement savings plan or non-qualified deferred compensation plan, in each case, in effect on the date hereof, (D) issuances of Securities or securities convertible into shares of Securities to the former shareholders of Indeck Capital, Inc. (“Indeck”) pursuant to the “earn-out” provisions contained in that certain agreement and plan of merger, dated as of January 1, 2000, among the Company, Indeck and the former shareholders of Indeck, and (E) issuances of Securities pursuant to the conversion of No Par Preferred Stock, Series 2000-A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from outstanding on the date of issuehereof.
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and Purchasers that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will promptly advise the Representatives promptly Representative of any proposal to amend or supplement the Registration Statement Preliminary Offering Circular, the Final Offering Circular, the General Disclosure Package or the Prospectus any Supplemental Marketing Material and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any not effect such amendment or supplement and of without the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts Representative’s consent, such consent not to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(c) be unreasonably withheld. If, at any time when a prospectus relating prior to the Securities is required to be delivered under completion of the Actresale of the Notes by the Purchasers, any there occurs an event occurs or development as a result of which any document included in the Prospectus as then amended Preliminary Offering Circular or supplemented the Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material, if republished immediately following such event or development, included or would include an untrue statement of a material fact or omitted or would omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representative of such event and promptly will prepare and file with furnish, at its own expense, to the Commission Purchasers and the dealers and to any other dealers at the request of the Representative, an amendment or supplement which will correct such statement or omission or an amendment which will effect such complianceomission. Neither the Representatives' Representative’s consent to, nor the Underwriters' Purchasers’ delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 56. The second sentence of this subsection does not apply to statements in or omissions from any document in the Preliminary Offering Circular or Final Offering Circular, the General Disclosure Package or any Supplemental Marketing Material made in reliance upon and in conformity with written information furnished to the Company by the Purchasers specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as soon as practicable, but not later than 16 months, after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K prior to the date of such Terms Agreement.
(eb) The Company will furnish to the Representatives Representative copies of the Registration StatementPreliminary Offering Circular, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplementeach other document comprising a part of the General Disclosure Package, the Prospectus and Final Offering Circular, all amendments and supplements to such documentsdocuments and each item of Supplemental Marketing Material, in each case as soon as available and in such quantities as are the Representative reasonably requestedrequests. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be furnished to the Representative and, upon request, to each of the other Purchasers and, upon request of holders and prospective purchasers of the Notes, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Notes. The Company will pay the expenses of printing and distributing to the Purchasers all such documents.
(fc) The Company will arrange for the qualification of the Securities Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Representatives shall reasonably designate Representative designates and will continue such qualifications in effect so long as required for the distribution; providedresale of the Notes by the Purchasers, however, provided that the Company shall will not be obligated required to qualify as a foreign limited liability company or to file any a general consent to service of process in any such jurisdiction or to qualify as a foreign corporation take any action that would subject itself to taxation based on income or revenues in any such jurisdiction in which where it is not so qualifiedcurrently subject to taxation.
(gd) During the period of five years one year after the date of any Terms AgreementClosing Date, the Company will furnish to the Representatives Representative and, upon request, to each of the other Underwriters, if anyPurchasers, as soon as practicable after the end of each fiscal year, a copy of its the Company’s annual report to stockholders for such year; and the Company will furnish to the Representatives (i) Representative and, upon request, to each of the other Purchasers as soon as available, a copy of each report on Form 10-K or 10-Q or and any definitive proxy statement of the Company and of any Guarantor that is a reporting company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholdersunitholders. However, so long as the Company timely files reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”) as if the Company were subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, it is not required to furnish such reports or statements to the Purchasers.
(e) During the period of one year after the Closing Date, the Company will, upon reasonable request, furnish to the Representative, each of the other Purchasers and any holder of Notes a copy of the restrictions on transfer applicable to the Notes.
(f) During the period of one year after the Closing Date, the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them. Neither the Company nor any affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of (i) the sale of the Notes by the Company to the Purchasers, (ii) from time the resale of the Notes by the Purchasers to timeany subsequent purchasers or (iii) the resale of the Notes by such subsequent purchasers to others.
(g) During the period of one year after the Closing Date, such other information concerning the Company as will not be or become, an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Representatives may reasonably requestInvestment Company Act.
(h) None of the Company, its affiliates, or any person acting on their behalf (other than any Purchaser, as to whom the Company makes no representation) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Notes in the United States or in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act or engage in any directed selling efforts (as that term is defined in Regulation S) in the United States with respect to the Notes, and the Company and its affiliates and each person acting on its or their behalf (other than the Purchasers) will comply with the offering restrictions requirement of Regulation S.
(i) The Company will cooperate with the Purchasers and use its best efforts to permit the Notes to be eligible for clearance and settlement through DTC, Euroclear and Clearstream, Luxembourg.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay all expenses incident incidental to the performance of its respective obligations under this Agreement Agreement, the Indenture and will reimburse the Underwriters for Security Documents, including but not limited to: (i) the fees and expenses of the Trustee, the Common Security Trustee and any transfer agent, registrar or depositary and their professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Notes, including any withholding, stamp, transfer or other similar taxes in connection with the original issuance and sale of Notes, the preparation and printing of this Agreement, the Security Documents, the Notes, the Indenture, the Preliminary Offering Circular, any other documents comprising any part of the General Disclosure Package, the Final Offering Circular, all amendments and supplements thereto, each item of Supplemental Marketing Material and any other document relating to the issuance, offer, sale and delivery of the Notes, including the fees, disbursements and expenses of the Company’s counsel, Company’s accountants and any other advisors to the Company; (iii) all filing costs and expenses relating to the perfection of security interests in the Collateral, as set forth in the Security Documents; (iv) the cost of any advertising approved by the Company in connection with the issue of the Notes; (v) any expenses (including reasonable fees and disbursements of counselcounsel to the Purchasers) incurred by them in connection with qualification of the Registered Securities Notes for sale under the laws of such jurisdictions in the United States and Canada as the Representatives may reasonably designate Representative designates and the preparation and printing of memoranda relating thereto, for ; (vi) any fees charged by investment rating agencies for the rating of the Securities Notes; (vii) all fees, disbursements and for expenses of the Independent Engineer, Market Consultant and Insurance Consultant, and any other third-party consultants who have prepared reports, attached as annexes to the General Disclosure Package and Final Offering Circular or otherwise, in connection with the transactions contemplated by this Agreement; (viii) expenses incurred in distributing the ProspectusPreliminary Offering Circular, any preliminary prospectuses other documents comprising any part of the General Disclosure Package, the Final Offering Circular (including any amendments and supplements thereto) and any preliminary prospectus supplements Supplemental Marketing Material to Underwritersthe Purchasers; (ix) all reasonable and documented out-of-pocket expenses (other than the fees, expenses and disbursements of counsel to the Purchasers) incurred by the Representative in connection with the transactions contemplated in this Agreement; and (x) all other reasonable and documented costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. The Company will also pay or reimburse the Representative (to the extent incurred by it) for reasonable, documented, out-of-pocket costs and expenses of the Representative and the Company’s officers and employees relating to investor presentations on any “road show” in connection with the offering and sale of the Notes including, without limitation, any such travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes.
(ik) For a period beginning at The Company will use the time of execution net proceeds received in connection with the offering of the Terms Agreement Notes in the manner described in the “Use of Proceeds” section of the General Disclosure Package.
(l) In connection with the offering of the Notes, until the Representative shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Notes or attempt to induce any person to purchase any Notes; and ending one business day after neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(m) Until the Closing Date, the Company will not, without the prior consent directly or indirectly, take any of the Representatives, offer, sell, contract following actions with respect to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more than one year from the date of issue or any securities convertible or exchangeable or exercisable for any such securities (“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) 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; (iv) 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 (v) file with the Commission a registration statement under the Securities Act relating to Lock-Up Securities or publicly disclose the intention to take any such action (other than as contemplated by this Agreement or the Registration Rights Agreement or in connection with pre-existing obligations with respect to debt securities issued under the Base Indenture), without the prior written consent of Xxxxxx Xxxxxxx & Co. LLC. The Company will not at any time directly or indirectly, take any action referred to in clauses (i) through (v) above with respect to any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(a)(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Cheniere Energy Partners, L.P.)
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx & Xllix, xxunsel for the Underwriters, one conformed copy of the Registration Statement, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, Rule 424(b)(5subparagraph (5)) not later than the second business day following the execution and delivery of this Agreement; and, if applicable, the Terms Agreement.Company will file any Rule 462(b) Registration Statement with the Commission not later than 10:00 P.M. on the date of execution and delivery of this Agreement (or such later time or date as may be consented to by the Representatives);
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.;
(c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the ActAct in connection with sales by any Underwriter or any dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will notify the Representatives of such event and will promptly prepare and file with the Commission Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' any Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.6 hereof;
(d) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, months after the date of each Terms this Agreement, the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Offered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms this Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms this Agreement., which will satisfy the provisions of Section 11(a) of the Act;
(e) The Company will furnish to each Underwriter and counsel for the Representatives Underwriters, at the expense of the Company, copies of the Registration Statement, including Statement in the form it became effective (of which will be signed and will include all exhibits) and of all amendments thereto and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any related preliminary prospectus, Underwriter or any related preliminary prospectus supplementdealer, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.such Underwriter requests. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the Business Day following the later of the execution and delivery of this Agreement. All other documents shall be so furnished as soon as available;
(f) The Company will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, provided that the Company shall not be obligated required to qualify as a foreign corporation, file any a general consent to service of process or become subject to qualify as a foreign corporation taxation in any jurisdiction in which it is not so qualified.jurisdiction;
(g) During the period of five years after the date of any Terms Agreement, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the performance of its obligations under this Agreement and will reimburse the Underwriters Agreement, for any filing fees and other expenses (including fees and disbursements of counsel) incurred by them in connection with qualification of the Registered Offered Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for any fees charged by investment rating agencies for the rating of the Offered Securities, for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and for expenses incurred in distributing the Prospectus, Prospectus (including any preliminary prospectuses amendments and any preliminary prospectus supplements thereto) to the Underwriters.;
(ih) For a During the period beginning at on the time of execution of date hereof and continuing to and including the Terms Agreement and ending one business day after Business Day following the Closing Date, the Company will not, without the prior consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A of the Securities Act) United States dollar-denominated debt securities issued of or guaranteed by the Company which are substantially similar to the Offered Securities;
(i) To file promptly all reports and having any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a maturity prospectus is required in connection with the offering or sale of more than one year the Offered Securities, and during such same period, to advise you promptly, and to confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or the initiation or threatening of any proceeding for that purpose; (v) of the occurrence of any event (within such period of time after the first date of issuethe public offering of the Offered Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Offered Securities is required by law to be delivered in connection with sales of the Offered Securities by any Underwriter or any dealer) as a result of such occurrence or event the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading; and (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Offered Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and to use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of the Prospectus or suspending any such qualification of the Offered Securities and, if any such order is issued, to use its reasonable best efforts to obtain as soon as possible the withdrawal thereof;
(j) To use the net proceeds received by the Company from the sale of the Offered Securities pursuant to this Agreement in the manner specified in the Prospectus under the caption "Use of Proceeds".
Appears in 1 contract
Certain Agreements of the Company. The Company agrees with the several Underwriters that it will furnish to Kirkxxxx Simpson Thacher & XllixBartlett, xxunsel for the Underwriterscounxxx xxx xxx Xxxerwxxxxxx, one conformed signed copy of the Registration Statementregistration statement relating to the Registered Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities:
(a) The Company will timely file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if consented 424(b); the Company will advise you promptly of any such filing pursuant to by Rule 424(b); the Representatives, Rule 424(b)(5)) not later than the second business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement; and the Company will also advise the Representatives promptly of the filing and effectiveness of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued.
(cb) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs in the reasonable judgment of the Underwriters or the Company as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact 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 is necessary at any time to amend the Prospectus to comply with the Act, the Company promptly will prepare and file with the Commission Commission, subject to Section 4(a) herein, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5.
(dc) In order to comply with the provisions of Section 11(a) of the Act, the Company will, as As soon as practicable, but not later than 16 months, practicable after the date of each Terms Agreement, make generally available to its securityholders an earnings statement covering a period of at least 12 but in no event later than twelve months beginning after the later of (i) the effective date of the Registration Statementregistration statement relating to the Registered Securities, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such Terms Agreement and (iii) the date of filing with the Commission of the Company's most recent Annual Report on Form 10-K filed with the Commission prior to the date of such Terms Agreement, the Company will make generally available to its security holders an earning statement which will satisfy the provisions of Section 11(a) of the Act.
(ed) The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related preliminary prospectus, any related preliminary prospectus supplement, the Prospectus and all amendments and supplements to such documents, in each case as soon as available and in such quantities as are reasonably requested.
(fe) The Company will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives shall reasonably designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified.
(gf) During the period of five years period, if any, specified in the Terms Agreement after the date of any such Terms AgreementAgreement or for such shorter period as the Securities remain outstanding, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, if any, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report on Form 10-K or 10-Q or definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934, as amended ("Exchange Act"), or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
(hg) The Company will pay the costs incident to the authorization, issuance, sale and delivery of the Securities to be sold by the Company to the Underwriters and any taxes payable in that connection; the costs incident to the preparation, printing and filing under the Act of the Registration Statement and any amendments and exhibits thereto; the costs incident to the preparation, printing and filing of any document and any amendments and exhibits thereto required to be filed by the Company under the Exchange Act; the cost of distributing the Registration Statement to the Underwriters as originally filed and each amendment thereto, each post-effective amendment thereof (including exhibits), any preliminary prospectus, the Prospectus and any amendment or supplement to the Prospectus and any documents incorporated by reference in any of the foregoing documents as provided in this Agreement; the costs of filing with the National Association of Securities Dealers, Inc., if necessary; the fees and expenses of qualifying the Securities under the securities laws of the several jurisdictions as provided in this subsection and of preparing and printing a Blue Sky memorandum and a memorandum concerning the legality of the Securities as an investment (including fees of counsel to the Underwriters in connection therewith); the costs of printing and issuance of certificates; any transfer agent's fees; the costs of preparation, printing and filing of any Indenture and any Trustees' fees and expenses; and all other costs and expenses incident to the performance of its the obligations of the Company under this Agreement provided that, except as provided in this subsection and will reimburse Section 8, the Underwriters for any expenses (shall pay their own costs and expenses, including the fees and disbursements expenses of their counsel) incurred by them in connection with qualification , any transfer taxes on the Securities which they may sell, the expenses of the Registered Securities for sale under the laws of such jurisdictions as the Representatives may reasonably designate and the printing of memoranda relating thereto, for advertising any fees charged by investment rating agencies for the rating offering of the Securities made by the Underwriters and the cost of printing any Agreement among Underwriters, and provided, further, that after nine months from the date of the Terms Agreement, the Underwriters shall pay the costs of printing any additional Registration Statements or Prospectuses, or any amendments or supplements thereto, required for expenses incurred in distributing the Prospectus, any preliminary prospectuses and any preliminary prospectus supplements to Underwriterstheir own use.
(ih) For Without the prior consent of the Representatives, the Company will not, (A) in the event of an offering of common stock, preferred stock or convertible debt securities, offer, sell, contract to sell or otherwise dispose of any shares of common stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire common stock for that period specified in the Terms Agreement, other than shares of common stock or options to purchase common stock granted under the Company's employee benefit plans and, (B) for a period beginning at the time of execution of the Terms Agreement and ending one business day after on the Closing Date, in the Company event of an offering of Debt Securities, will not, without the prior consent of the Representatives, not offer, sell, contract to sell or otherwise dispose of any publicly sold (including pursuant to Rule 144A debt securities of the Securities Act) United States dollar-denominated debt securities issued or guaranteed by the Company and having a maturity of more with maturities longer than one year from year, other than (i) the date Debt Securities to the Underwriters or the Contract Securities; (ii) borrowings in the ordinary course of issuebusiness; and (iii) other borrowings in an aggregate principal amount not to exceed $100 million.
Appears in 1 contract
Samples: Underwriting Agreement (Unisys Corp)
