Certain Covenants and Agreements of York Water. York Water covenants and agrees with the Underwriter as follows: (a) If Rule 430A of the Regulations is employed, York Water will timely file the Prospectus pursuant to and in compliance with Rule 424(b) of the Regulations and will advise the Underwriter of the time and manner of such filing. (b) York Water will not file with the SEC the Prospectus, any amendment or supplement to the Prospectus or any amendment to the Registration Statement, and will not use, authorize, refer to or file any Issuer Free Writing Prospectus, unless the Underwriter has received a reasonable period of time to review any such proposed amendment, supplement or Issuer Free Writing Prospectus and consented to the filings thereof, such consent not to be unreasonably withheld, and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon reasonable request of the Underwriter or counsel for the Underwriter, York Water will promptly prepare and file with the SEC, in accordance with the Regulations, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the Underwriter and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. If required, York Water will file any amendment or supplement to the Prospectus with the SEC in the manner and within the time period required by Rule 424(b) or Rule 433 under the Act. York Water will advise the Underwriter, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereof has been filed or declared effective or the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Underwriter of each filing or effectiveness. (c) York Water will promptly advise the Underwriter, and confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement is filed with the SEC under Rule 462(c) under the Act or otherwise, (ii) when any Rule 462(b) Registration Statement is filed, (iii) of the receipt of any comments from the SEC concerning the Registration Statement, (iv) when any post-effective amendment to the Registration Statement becomes effective, or when any supplement to the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amended prospectus or any amended Issuer Free Writing Prospectus has been filed, (v) of any request of the SEC for amendment or supplementation of the Registration Statement, the Disclosure Package or the Prospectus or for additional information, (vi) during the period when a prospectus is required to be delivered under the Act and Regulations, either physically or through compliance with Rule 172 under the Act (the “Prospectus Delivery Period”), of the happening of any event as a result of which the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (vii) during the Prospectus Delivery Period, of the need to amend the Registration Statement or supplement the Prospectus to comply with the Act, (viii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, and (ix) of the suspension of the approval of the Shares for listing on the NASDAQ Global Select Market or the qualification of any of the Shares for offering or sale in any jurisdiction in which the Underwriter intends to make such offers or sales, or the initiation or threatening of any proceedings for any of such purposes known to York Water. York Water will use its reasonable best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use, and if any such order is issued, to obtain as soon as possible the lifting thereof. (d) York Water will deliver to the Underwriter, without charge, as many copies of each Preliminary Prospectus as the Underwriter has reasonably requested. York Water will deliver, without charge, to the Underwriter, such number of copies of the Prospectus, and any supplements or amendments thereto, as the Underwriter may reasonably request from time to time during the Prospectus Delivery Period. York Water hereby consents to the use of such copies of the Statutory Prospectus and the Prospectus for purposes permitted by the Act, the Regulations and the securities or Blue Sky laws of the states or foreign jurisdictions in which the Shares are offered by the Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares during the Prospectus Delivery Period. If requested by the Underwriter in writing, York Water will furnish to the Underwriter at least one original signed copy of the Registration Statement as originally filed and of all amendments and supplements thereto, whether filed before or after the Effective Time, at least one copy of all exhibits filed therewith and of all consents and certificates of experts, and will deliver to the Underwriter such number of conformed copies of the Registration Statement, including financial statements and exhibits, and all amendments thereto, as the Underwriter may reasonably request. (e) York Water will comply with the Act, the Regulations, the Exchange Act and the rules and regulations thereunder so as to permit the continuation of sales of and dealings in the Shares for as long as may be necessary to complete the distribution of the Shares as contemplated hereby. (f) York Water will furnish such information and pay such filing fees and other expenses as may be required, including its counsel’s reasonable legal fees, and otherwise cooperate in the registration or qualification of the Shares, or exemption therefrom, for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions in which the Underwriter determines to offer the Shares, after consultation with York Water, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that no such qualification shall be required in any jurisdiction where, solely as a result thereof, York Water would be subject to taxation or qualification as a foreign corporation doing business in such jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as is required under the laws of such jurisdictions for such offering and sale. York Water will furnish such information and pay such filing fees and other expenses as may be required, and otherwise cooperate in the listing of the Shares on the NASDAQ Global Select Market. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for a period of three years from the Effective Time. (g) Subject to Section 5(b) hereof, in case of any event occurring at any time within the Prospectus Delivery Period, as a result of which the Prospectus, as then amended or supplemented, would contain an 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, not misleading, or, if it is necessary at any time to amend the Prospectus to comply with the requirements of the Act or the Regulations or any applicable securities or Blue Sky laws, York Water promptly will prepare and file with the SEC, and any applicable state and foreign securities commission, an amendment, supplement or document that will correct such statement or omission or effect such compliance (including by preparing and filing with the SEC an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus and thereby will correct such statement or omission or effect such compliance) and will furnish to the Underwriter such number of copies of such amendments, supplements or documents (in form and substance satisfactory to the Underwriter and counsel for the Underwriter) as the Underwriter may reasonably request. For purposes of this Section 5(g), York Water will provide such information to the Underwriter, the Underwriter’s counsel and counsel to York Water as shall be necessary to enable such persons to consult with York Water with respect to the need to amend or supplement the Registration Statement or the Prospectus or file any document, and shall furnish to the Underwriter and the Underwriter’s counsel such further information as each may from time to time reasonably request. (h) York Water agrees that, unless it obtains the prior written consent, not to be unreasonably withheld, of the Underwriter, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by York Water with the SEC or retained by York Water under Rule 433 of the Act; provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of the free writing prospectuses included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” York Water agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping. (i) York Water will make generally available to its security holders not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Time, an earnings statement of York Water (which need not be audited unless required by the Act or the Regulations) that shall comply with Section 11(a) of the Act and Rule 158 thereunder and cover a period of at least 12 consecutive months beginning not later than the first day of York Water’s fiscal quarter next following the Effective Time (or, if later, the effective date of the Rule 462(b) Registration Statement). (j) During the course of the distribution of the Shares, York Water will not and York Water shall use commercially reasonable efforts to cause its officers and directors not to, (i) take, directly or indirectly, any action designed to, or that could reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock or (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares. (k) York Water has caused each person listed on Schedule III hereto to execute an agreement (a “Lock-up Agreement”) in the form set forth as Exhibit B hereto. York Water has delivered such agreements to the Underwriter prior to the date of this Agreement. Appropriate stop transfer instructions will be issued by York Water to the transfer agent for the Common Stock and a copy of such instructions will be delivered to the Underwriter. (l) During the period commencing on the date hereof and ending on the 90th day following the date of the Prospectus, York Water will not, without the prior written consent of the Underwriter (which consent may be withheld at the sole discretion of the Underwriter), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act or liquidate or decrease a “call equivalent position” within the meaning of Rule 16a-1(b) under the Exchange Act, or otherwise dispose of or transfer (or enter into any transaction which is designed to, or would reasonably be expected to, result in the disposition of), or announce the offering of, or file any registration statement under the Act in respect of, any shares of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Shares); provided, however, that York Water may issue shares of Common Stock under York Water’s Dividend Reinvestment Plan and York Water’s Employee Stock Purchase Plan. Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period York Water issues an earnings release or material news or a material event relating to York Water occurs, or (y) prior to the expiration of the 90-day restricted period, York Water announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. York Water will provide the Underwriter with prior notice of any announcement described in clause (y) of the preceding sentence that gives rise to an extension of the restricted period. (m) For a period of three years from the Effective Time, York Water will use all reasonable efforts to maintain the listing of the Common Stock (including, without limitation, the Shares) on the NASDAQ Global Select Market or on a national securities exchange. (n) York Water shall, at its sole cost and expense, supply and deliver to the Underwriter and the Underwriter’s counsel, within a reasonable period from the Closing Date, two complete bound sets of transaction documents. (o) York Water will use the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth under the caption “Use of Proceeds” in the Prospectus.
Appears in 1 contract
Certain Covenants and Agreements of York Water. York Water covenants and agrees with the Underwriter as follows:
(a) If Rule 430A of the Regulations is employed, York Water will timely file the Prospectus pursuant to and in compliance with Rule 424(b) of the Regulations and will advise the Underwriter of the time and manner of such filing.
(b) York Water will not file with the SEC the Prospectus, any amendment or supplement to the Prospectus or any amendment to the Registration Statement, and will not use, authorize, refer to or file any Issuer Free Writing Prospectus, unless the Underwriter has received a reasonable period of time to review any such proposed amendment, amendment or supplement or Issuer Free Writing Prospectus and consented to the filings filing thereof, such consent not to be unreasonably withheld, and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon reasonable request of the Underwriter or counsel for the Underwriter, York Water will promptly prepare and file with the SEC, in accordance with the RegulationsRegulations of the SEC, any amendments to the Registration Statement or amendments or supplements to the Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the Underwriter and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. If required, York Water will file any amendment or supplement to the Prospectus with the SEC in the manner and within the time period required by Rule 424(b) or Rule 433 under the Act. York Water will advise the Underwriter, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereof has been filed or declared effective or the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Underwriter of each filing or effectiveness.
(c) York Water will promptly advise the Underwriter, and confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement is filed with the SEC under Rule 462(c) under the Act or otherwise, (ii) when any Rule 462(b) Registration Statement is filed, (iii) of the receipt of any comments from the SEC concerning the Registration Statement, (iv) when any post-effective amendment to the Registration Statement becomes effective, or when any supplement to the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amended prospectus or any amended Issuer Free Writing Prospectus has been filed, (v) of any request of the SEC for amendment or supplementation of the Registration Statement, the Disclosure Package Statement or the Prospectus or for additional information, (vi) during the period when a prospectus the Prospectus is required to be delivered under the Act and Regulations, either physically or through compliance with Rule 172 under the Act (the “Prospectus Delivery Period”), of the happening of any event as a result of which the Registration Statement or the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, therein not misleading, (vii) during the Prospectus Delivery Periodperiod noted in clause (vi) above, of the need to amend the Registration Statement or supplement the Prospectus to comply with the Act, (viii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, and (ix) of the suspension of the approval of the Shares for listing on the NASDAQ Global Select Market or the qualification of any of the Shares for offering or sale in any jurisdiction in which the Underwriter intends to make such offers or sales, or the initiation or threatening of any proceedings for any of such purposes known to York Water. York Water will use its reasonable best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use, and if any such order is issued, to obtain as soon as possible the lifting thereof.
(d) York Water will deliver to the Underwriter, without charge, as many copies from time to time during the period when delivery of each Preliminary the Prospectus as is required under the Underwriter has reasonably requested. York Water will deliver, without charge, to the UnderwriterAct, such number of copies of the Prospectus, and any supplements Prospectus (as supplemented or amendments thereto, amended) as the Underwriter may reasonably request from time to time during the Prospectus Delivery Periodrequest. York Water hereby consents to the use of such copies of the Statutory Preliminary Prospectus and the Prospectus for purposes permitted by the Act, the Regulations and the securities or Blue Sky laws of the states or foreign jurisdictions in which the Shares are offered by the Underwriter and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares during and for such period of time thereafter as the Prospectus Delivery Periodis required by the Act to be delivered in connection with sales by the Underwriter or dealer. If requested by the Underwriter in writing, York Water will furnish to the Underwriter at least one original signed copy of the Registration Statement as originally filed and of all amendments and supplements thereto, whether filed before or after the Effective TimeDate, at least one copy of all exhibits filed therewith and of all consents and certificates of experts, and will deliver to the Underwriter such number of conformed copies of the Registration Statement, including financial statements and exhibits, and all amendments thereto, as the Underwriter may reasonably request.
(e) York Water will comply with the Act, the Regulations, the Exchange Act and the rules and regulations thereunder Exchange Act Regulations so as to permit the continuation continuance of sales of and dealings in the Shares for as long as may be necessary to complete the distribution of the Shares as contemplated hereby.
(f) York Water will furnish such information and pay such filing fees and other expenses as may be required, including its counsel’s reasonable legal fees, and otherwise cooperate in the registration or qualification of the Shares, or exemption therefrom, for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions in which the Underwriter determines to offer the Shares, after consultation with York Water, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that no such qualification shall be required in any jurisdiction where, solely as a result thereof, York Water would be subject to taxation or qualification as a foreign corporation doing business in such jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as is required under reasonably requested by the laws of such jurisdictions Underwriter for such offering and sale. York Water will furnish such information and pay such filing fees and other expenses as may be required, and otherwise cooperate in the listing inclusion of the Shares for quotation on the NASDAQ Global Select Nasdaq National Market. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for a period of three years from the Effective TimeDate.
(g) Subject to Section 5(b) hereof, in case of any event (occurring at any time within the Prospectus Delivery Periodperiod during which, in the opinion of counsel for the Underwriter, a prospectus is required to be delivered under the Act or the Regulations), as a result of which the Prospectus, as then amended or supplemented, would contain an 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, therein not misleading, or, if it is necessary at any time to amend the Prospectus to comply with the requirements of the Act or the Regulations or any applicable securities or Blue Sky laws, York Water promptly will prepare and file with the SEC, and any applicable state and foreign securities commission, an amendment, supplement or document that will correct such statement or omission or effect such compliance (including by preparing and filing with the SEC an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus and thereby will correct such statement or omission or effect such compliance) and will furnish to the Underwriter such number of copies of such amendments, supplements or documents (in form and substance satisfactory to the Underwriter and counsel for the Underwriter) as the Underwriter may reasonably request. For purposes of this Section 5(g), York Water will provide such information to the Underwriter, the Underwriter’s 's counsel and counsel to York Water as shall be necessary to enable such persons to consult with York Water with respect to the need to amend or supplement the Registration Statement or the Prospectus or file any document, and shall furnish to the Underwriter and the Underwriter’s 's counsel such further information as each may from time to time reasonably request.
(h) York Water agrees that, unless it obtains the prior written consent, not to be unreasonably withheld, of the Underwriter, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by York Water with the SEC or retained by York Water under Rule 433 of the Act; provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of the free writing prospectuses included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” York Water agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
(i) York Water will make generally available to its security holders not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Timeperiod covered thereby, an earnings statement of York Water (which need not be audited unless required by the Act or the Regulations) that shall comply with Section 11(a) of the Act and Rule 158 thereunder and cover a period of at least 12 consecutive months beginning not later than the first day of York Water’s 's fiscal quarter next following the Effective Time Date (or, if later, the effective date of the Rule 462(b) Registration Statement).
(ji) During the course of the distribution of the Shares, York Water will not and York Water shall use commercially reasonable efforts to cause its officers and directors not to, (i) take, directly or indirectly, any action designed to, or that could reasonably be expected to, cause or result in stabilization or manipulation of the price of the Common Stock or (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares.
(kj) York Water has caused each person listed on Schedule III I hereto to execute an agreement (a “"Lock-up Agreement”") in form and substance satisfactory to the form set forth as Exhibit B heretoUnderwriter and the Underwriter's counsel which provides that from the date of the Lock-up Agreement and for a period of 90 days from the Effective Date, such persons will not, subject to certain exceptions, without the prior written consent of the Underwriter, directly or indirectly, sell, offer or contract to sell, pledge, grant any option for sale or purchase of, agree to sell or otherwise dispose of (collectively, "Disposition") any shares of Common Stock (or any securities convertible into or exercisable or exchangeable for any shares of Common Stock) or enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences of ownership of Common Stock, or publicly disclose the intention to make any such Disposition or enter into any such transaction, swap, hedge or other arrangement. York Water has delivered such agreements to the Underwriter prior to the date of this Agreement. Appropriate stop transfer instructions will be issued by York Water to the transfer agent for the Common Stock and a copy of such instructions will be delivered to the Underwriter.
(lk) During the period commencing on the date hereof and ending on the 90th day following As of the date of the ProspectusLock-up Agreement and for a period of 90 days after the Effective Date, York Water will not, without the prior written consent of the Underwriter (Underwriter, issue or make a Disposition of any Common Stock or any securities convertible into or exercisable or exchangeable for any Common Stock or enter into a transaction which consent may be withheld at would have the sole discretion of the Underwriter), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act or liquidate or decrease a “call equivalent position” within the meaning of Rule 16a-1(b) under the Exchange Act, or otherwise dispose of or transfer (same effect or enter into any transaction which is designed toswap, hedge or would reasonably be expected toother arrangement that transfers, result in the disposition of), whole or announce the offering of, or file any registration statement under the Act in respect ofpart, any shares of the economic consequences of ownership of Common Stock, options or warrants publicly disclose the intention to acquire shares of Common Stock issue or securities exchangeable make any such Disposition or exercisable for enter into any such transaction, swap, hedge or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to arrangement, except the Shares); provided, however, that York Water may issue shares issuance of Common Stock under York Water’s 's Dividend Reinvestment Plan and York Water’s Employee Stock Purchase Plan. Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period York Water issues an earnings release or material news or a material event relating to York Water occurs, or (y) prior to the expiration of the 90-day restricted period, York Water announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. York Water will provide the Underwriter with prior notice of any announcement described in clause (y) of the preceding sentence that gives rise to an extension of the restricted period.
(ml) For a period of three years from the Effective TimeDate, York Water will use all reasonable efforts to maintain the listing of the Common Stock (including, without limitation, the Shares) on the NASDAQ Global Select Nasdaq National Market or on a national securities exchange.
(n) York Water shall, at its sole cost and expense, supply and deliver to the Underwriter and the Underwriter’s counsel, within a reasonable period from the Closing Date, two complete bound sets of transaction documents.
(om) York Water will use the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth under the caption “"Use of Proceeds” " in the Prospectus.
Appears in 1 contract
Certain Covenants and Agreements of York Water. York Water covenants and agrees with the Underwriter as follows:
(a) If Rule 430A of the Regulations is employed, York Water will timely file comply with the Prospectus pursuant to and in compliance with requirements of Rule 424(b) of the Regulations and will advise the Underwriter of the time and manner of such filing.430B.
(b) York Water will not file with the SEC the Prospectus, any amendment or supplement to the Prospectus or any amendment to the Registration StatementStatement or the Statutory Prospectus, and will not use, authorize, refer to or file any Issuer Free Writing Prospectus, unless the Underwriter has received a reasonable period of time to review any such proposed amendment, supplement or Issuer Free Writing Prospectus and consented to the filings thereof, such consent not to be unreasonably withheld, and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon reasonable request of the Underwriter or counsel for the Underwriter, York Water will promptly prepare and file with the SEC, in accordance with the Regulations, any amendments to the Registration Statement or amendments or supplements to the Prospectus or the Statutory Prospectus that may be necessary or advisable in connection with the distribution of the Shares Notes by the Underwriter and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. If required, York Water will file any amendment or supplement to the Prospectus or the Statutory Prospectus with the SEC in the manner and within the time period required by Rule 424(b) or Rule 433 under the Act. York Water will advise the Underwriter, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereof has been filed or declared effective or the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Underwriter of each filing or effectiveness.
(c) York Water will promptly advise the Underwriter, and confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement is filed with the SEC under Rule 462(c) under the Act or otherwise, (ii) when any Rule 462(b) Registration Statement is filed, (iii) of the receipt of any comments from the SEC concerning the Registration Statement, (iviii) when any post-effective amendment to the Registration Statement becomes effective, or when any supplement to the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amended prospectus or any amended Issuer Free Writing Prospectus has been filed, (viv) of any request of the SEC for amendment or supplementation of the Registration Statement, the Disclosure Package or the Prospectus or for additional information, (viv) during the period when a prospectus is required to be delivered under the Act and Regulations, either physically or through compliance with Rule 172 under the Act (the “Prospectus Delivery Period”), of the happening of any event as a result of which the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (viivi) during the Prospectus Delivery Period, of the need to amend the Registration Statement or supplement the Prospectus to comply with the Act, (viiivii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, and (ixviii) of the suspension of the approval of the Shares for listing on the NASDAQ Global Select Market or the qualification of any of the Shares Notes for offering or sale in any jurisdiction in which the Underwriter intends intend to make such offers or sales, or the initiation or threatening of any proceedings for any of such purposes known to York Water. York Water will use its reasonable best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use, and if any such order is issued, to obtain as soon as possible the lifting thereof.
(d) York Water will deliver has delivered to the Underwriter, without charge, as many copies of each Preliminary Prospectus and the Statutory Prospectus as the Underwriter has reasonably requested. York Water will deliver, without charge, to the Underwriter, such number of copies of the Prospectus, and any supplements or amendments thereto, as the Underwriter may reasonably request from time to time during the Prospectus Delivery Period. York Water hereby consents to the use of such copies of the Statutory Prospectus and the Prospectus for purposes permitted by the Act, the Regulations and the securities or Blue Sky laws of the states or foreign jurisdictions in which the Shares Notes are offered by the Underwriter and by all dealers to whom Shares Notes may be sold, both in connection with the offering and sale of the Shares Notes during the Prospectus Delivery Period. If requested by the Underwriter in writing, York Water will furnish to the Underwriter at least one original signed copy of the Registration Statement as originally filed and of all amendments and supplements thereto, whether filed before or after the Effective Time, at least one copy of all exhibits filed therewith and of all consents and certificates of experts, and will deliver to the Underwriter such number of conformed copies of the Registration Statement, including financial statements and exhibits, and all amendments thereto, as the Underwriter may reasonably request.
(e) York Water will comply with the Act, the Regulations, the Exchange Act and the rules and regulations thereunder so as to permit the continuation of sales of and dealings in the Shares Notes for as long as may be necessary to complete the distribution of the Shares Notes as contemplated hereby.
(f) York Water will furnish such information and pay such filing fees and other expenses as may be required, including its counsel’s reasonable legal fees, and otherwise cooperate in the registration or qualification of the SharesNotes, or exemption therefrom, for offering and sale by the Underwriter and by dealers under the securities or Blue Sky laws of such jurisdictions in which the Underwriter determines to offer the Shares, Notes after consultation with York Water, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that no such qualification shall be required in any jurisdiction where, solely as a result thereof, York Water would be subject to taxation or qualification as a foreign corporation doing business in such jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the SharesNotes, in any jurisdiction where it is not now so subject. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as is required under the laws of such jurisdictions for such offering and sale. York Water will furnish such information and pay such filing fees and other expenses as may be required, and otherwise cooperate in the listing of the Shares on the NASDAQ Global Select Market. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for a period of three years from the Effective Initial Sale Time.
(g) Subject to Section 5(b4(b) hereof, in case of any event occurring at any time within the Prospectus Delivery Period, as a result of which the Prospectus, as then amended or supplemented, would contain an 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, not misleading, or, if it is necessary at any time to amend the Prospectus to comply with the requirements of the Act or the Regulations or any applicable securities or Blue Sky laws, York Water promptly will prepare and file with the SEC, and any applicable state and foreign securities commission, an amendment, supplement or document that will correct such statement or omission or effect such compliance (including by preparing and filing with the SEC an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus and thereby will correct such statement or omission or effect such compliance) and will furnish to the Underwriter such number of copies of such amendments, supplements or documents (in form and substance satisfactory to the Underwriter and counsel for the Underwriter) as the Underwriter may reasonably request. For purposes of this Section 5(g4(g), York Water will provide such information to the Underwriter, the Underwriter’s counsel and counsel to York Water as shall be necessary to enable such persons to consult with York Water with respect to the need to amend or supplement the Registration Statement or the Prospectus or file any document, and shall furnish to the Underwriter and the Underwriter’s counsel such further information as each may from time to time reasonably request.
(h) York Water agrees that, unless it obtains the prior written consent, not to be unreasonably withheld, of the Underwriter, it will not make any offer relating to the Shares Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by York Water with the SEC or retained by York Water under Rule 433 of the Act; provided that the prior written consent of the Underwriter shall be deemed to have been given in respect of the free writing prospectuses included in Schedule I hereto. Any such free writing prospectus consented to by the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” York Water agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
(i) York Water will make generally available to its security holders not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Time“effective date” (as defined in Rule 158 under the Act), an earnings statement of York Water (which need not be audited unless required by the Act or the Regulations) that shall comply with Section 11(a) of the Act and Rule 158 thereunder and cover a period of at least 12 consecutive months beginning not later than the first day of York Water’s fiscal quarter next following the Effective Time (or, if later, the “effective date of the Rule 462(b) Registration Statement)date.”
(j) During Prior to the course of the distribution of the SharesClosing Date, York Water will not and York Water shall use commercially reasonable efforts to cause its officers and directors not to, (i) take, issue no press release or other communications directly or indirectlyindirectly and hold no press conference with respect to York Water, any action designed toits condition, financial or otherwise, or that could reasonably be expected tothe earnings, cause business, operations or result in stabilization prospects of York Water, or manipulation the offering of the price of the Common Stock or (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares.
(k) York Water has caused each person listed on Schedule III hereto to execute an agreement (a “Lock-up Agreement”) in the form set forth as Exhibit B hereto. York Water has delivered such agreements to the Underwriter prior to the date of this Agreement. Appropriate stop transfer instructions will be issued by York Water to the transfer agent for the Common Stock and a copy of such instructions will be delivered to the Underwriter.
(l) During the period commencing on the date hereof and ending on the 90th day following the date of the Prospectus, York Water will not, Notes without the prior written consent of the Underwriter (which consent may be withheld at the sole discretion of the Underwriter), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act or liquidate or decrease a “call equivalent position” within the meaning of Rule 16a-1(b) under the Exchange Act, or otherwise dispose of or transfer (or enter into any transaction which is designed to, or would reasonably be expected to, result unless in the disposition of)judgment of York Water and its counsel, or announce the offering of, or file any registration statement under the Act in respect of, any shares of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect and after notification to the Shares); provided, however, that York Water may issue shares of Common Stock under York Water’s Dividend Reinvestment Plan and York Water’s Employee Stock Purchase Plan. Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period York Water issues an earnings Underwriter such press release or material news or a material event relating to York Water occurs, or (y) prior to the expiration of the 90-day restricted period, York Water announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. York Water will provide the Underwriter with prior notice of any announcement described in clause (y) of the preceding sentence that gives rise to an extension of the restricted periodcommunication is required by law.
(m) For a period of three years from the Effective Time, York Water will use all reasonable efforts to maintain the listing of the Common Stock (including, without limitation, the Shares) on the NASDAQ Global Select Market or on a national securities exchange.
(nk) York Water shall, at its sole cost and expense, supply and deliver to the Underwriter and to the Underwriter’s counsel, within a reasonable period from the Closing Date, two one complete bound sets set of transaction documentsdocuments for each such party.
(ol) York Water will use the net proceeds from the sale of the Shares Notes to be sold by it hereunder substantially in accordance with the description set forth under the caption “Use of Proceeds” in the Prospectus.
(m) During the period of time from the date of this Agreement to the business day after the Closing Date, the Company will not, without the Underwriter’s prior written consent, directly or indirectly, sell, offer to sell, grant any option for the sale of, or otherwise dispose of, any notes or any security convertible into or exchangeable into or exercisable for the notes or any debt securities substantially similar to the Notes (except for the Notes issued pursuant to this Agreement).
Appears in 1 contract
Certain Covenants and Agreements of York Water. York Water covenants and agrees with the Underwriter several Underwriters as follows:
(a) If Rule 430A of the Regulations is employed, York Water will timely file comply with the Prospectus pursuant to and in compliance with requirements of Rule 424(b) of the Regulations and will advise the Underwriter of the time and manner of such filing.430B.
(b) York Water will not file with the SEC the Prospectus, any amendment or supplement to the Prospectus or any amendment to the Registration StatementStatement or the Statutory Prospectus, and will not use, authorize, refer to or file any Issuer Free Writing Prospectus, unless the Underwriter Representative has received a reasonable period of time to review any such proposed amendment, supplement or Issuer Free Writing Prospectus and consented to the filings thereof, such consent not to be unreasonably withheld, and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. Upon reasonable request of the Underwriter Representative or counsel for the UnderwriterUnderwriters, York Water will promptly prepare and file with the SEC, in accordance with the Regulations, any amendments to the Registration Statement or amendments or supplements to the Prospectus or the Statutory Prospectus that may be necessary or advisable in connection with the distribution of the Shares by the Underwriter several Underwriters and will use its reasonable best efforts to cause any such amendment to the Registration Statement to be declared effective as promptly as possible. If required, York Water will file any amendment or supplement to the Prospectus or the Statutory Prospectus with the SEC in the manner and within the time period required by Rule 424(b) or Rule 433 under the Act. York Water will advise the UnderwriterUnderwriters, promptly after receiving notice thereof, of the time when the Registration Statement or any amendment thereof has been filed or declared effective or the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement thereto has been filed and will provide evidence to the Underwriter Underwriters of each filing or effectiveness.
(c) York Water will promptly advise the UnderwriterUnderwriters, and confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement is filed with the SEC under Rule 462(c) under the Act or otherwise, (ii) when any Rule 462(b) Registration Statement is filed, (iii) of the receipt of any comments from the SEC concerning the Registration Statement, (iviii) when any post-effective amendment to the Registration Statement becomes effective, or when any supplement to the Prospectus, the Statutory Prospectus or any Issuer Free Writing Prospectus or any amended prospectus or any amended Issuer Free Writing Prospectus has been filed, (viv) of any request of the SEC for amendment or supplementation of the Registration Statement, the Disclosure Package or the Prospectus or for additional information, (viv) during the period when a prospectus is required to be delivered under the Act and Regulations, either physically or through compliance with Rule 172 under the Act (the “Prospectus Delivery Period”), of the happening of any event as a result of which the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (viivi) during the Prospectus Delivery Period, of the need to amend the Registration Statement or supplement the Prospectus to comply with the Act, (viiivii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, and (ixviii) of the suspension of the approval of the Shares for listing on the NASDAQ Global Select Market or the qualification of any of the Shares for offering or sale in any jurisdiction in which the Underwriter intends Underwriters intend to make such offers or sales, or the initiation or threatening of any proceedings for any of such purposes known to York Water. York Water will use its reasonable best efforts to prevent the issuance of any such stop order or of any order preventing or suspending such use, and if any such order is issued, to obtain as soon as possible the lifting thereof.
(d) York Water will deliver has delivered to the UnderwriterUnderwriters, without charge, as many copies of each Preliminary Prospectus and the Statutory Prospectus as the Underwriter has Underwriters have reasonably requested. York Water will deliver, without charge, to the UnderwriterUnderwriters, such number of copies of the Prospectus, and any supplements or amendments thereto, as the Underwriter Underwriters may reasonably request from time to time during the Prospectus Delivery Period. York Water hereby consents to the use of such copies of the Statutory Prospectus and the Prospectus for purposes permitted by the Act, the Regulations and the securities or Blue Sky laws of the states or foreign jurisdictions in which the Shares are offered by the Underwriter Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares during the Prospectus Delivery Period. If requested by the Underwriter Representative in writing, York Water will furnish to the Underwriter Underwriters at least one original signed copy of the Registration Statement as originally filed and of all amendments and supplements thereto, whether filed before or after the Effective Time, at least one copy of all exhibits filed therewith and of all consents and certificates of experts, and will deliver to the Underwriter Underwriters such number of conformed copies of the Registration Statement, including financial statements and exhibits, and all amendments thereto, as the Underwriter Underwriters may reasonably request.
(e) York Water will comply with the Act, the Regulations, the Exchange Act and the rules and regulations thereunder so as to permit the continuation of sales of and dealings in the Shares for as long as may be necessary to complete the distribution of the Shares as contemplated hereby.
(f) York Water will furnish such information and pay such filing fees and other expenses as may be required, including its counsel’s reasonable legal fees, and otherwise cooperate in the registration or qualification of the Shares, or exemption therefrom, for offering and sale by the Underwriter several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions in which the Underwriter determines Underwriters determine to offer the Shares, after consultation with York Water, and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided, however, that no such qualification shall be required in any jurisdiction where, solely as a result thereof, York Water would be subject to taxation or qualification as a foreign corporation doing business in such jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for so long a period as is required under the laws of such jurisdictions for such offering and sale. York Water will furnish such information and pay such filing fees and other expenses as may be required, and otherwise cooperate in the listing of the Shares on the NASDAQ Global Select Market. York Water will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualification in effect for a period of three years from the Effective Initial Sale Time.
(g) Subject to Section 5(b) hereof, in case of any event occurring at any time within the Prospectus Delivery Period, as a result of which the Prospectus, as then amended or supplemented, would contain an 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, not misleading, or, if it is necessary at any time to amend the Prospectus to comply with the requirements of the Act or the Regulations or any applicable securities or Blue Sky laws, York Water promptly will prepare and file with the SEC, and any applicable state and foreign securities commission, an amendment, supplement or document that will correct such statement or omission or effect such compliance (including by preparing and filing with the SEC an appropriate filing under the Exchange Act which shall be incorporated by reference in the Prospectus and thereby will correct such statement or omission or effect such compliance) and will furnish to the Underwriter Underwriters such number of copies of such amendments, supplements or documents (in form and substance satisfactory to the Underwriter Representative and counsel for the UnderwriterUnderwriters) as the Underwriter Underwriters may reasonably request. For purposes of this Section 5(g), York Water will provide such information to the UnderwriterUnderwriters, the Underwriter’s Underwriters’ counsel and counsel to York Water as shall be necessary to enable such persons to consult with York Water with respect to the need to amend or supplement the Registration Statement or the Prospectus or file any document, and shall furnish to the Underwriter Underwriters and the Underwriter’s Underwriters’ counsel such further information as each may from time to time reasonably request.
(h) York Water agrees that, unless it obtains the prior written consent, not to be unreasonably withheld, of the UnderwriterRepresentative, it will not make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Act) required to be filed by York Water with the SEC or retained by York Water under Rule 433 of the Act; provided that the prior written consent of the Underwriter Representative shall be deemed to have been given in respect of the free writing prospectuses included in Schedule I II hereto. Any such free writing prospectus consented to by the Underwriter Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” York Water agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping.
(i) York Water will make generally available to its security holders not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the Effective Time“effective date” (as defined in Rule 158 under the Act), an earnings statement of York Water (which need not be audited unless required by the Act or the Regulations) that shall comply with Section 11(a) of the Act and Rule 158 thereunder and cover a period of at least 12 consecutive months beginning not later than the first day of York Water’s fiscal quarter next following the Effective Time (or, if later, the “effective date of the Rule 462(b) Registration Statement)date”.
(j) Prior to the Closing Date, York Water will issue no press release or other communications directly or indirectly and hold no press conference with respect to York Water, its condition, financial or otherwise, or the earnings, business, operations or prospects of York Water, or the offering of the Shares without the prior written consent of the Representative unless in the judgment of York Water and its counsel, and after notification to the Representative such press release or communication is required by law.
(k) During the course of the distribution of the Shares, York Water will not and York Water shall use commercially reasonable efforts to cause its officers and directors not to, (i) take, directly or indirectly, any action designed to, to or that could might be reasonably be expected to, to cause or result in stabilization or manipulation of the price of the Common Stock or any other reference security, whether to facilitate the sale or resale of the Shares or otherwise, and York Water will, and will cause each of its affiliates to, comply with all applicable provisions of Regulation M, or (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of, the Shares. If the limitations of Rule 102 of Regulation M (“Rule 102”) do not apply with respect to the Shares or any other reference security pursuant to any exception set forth in Section (d) of Rule 102, then promptly upon notice from the Representative (or, if later, at the time stated in the notice), York Water will, and will cause each of its affiliates to, comply with Rule 102 as though such exception were not available but the other provisions of Rule 102 (as interpreted by the SEC) did apply.
(kl) York Water has caused each person listed on Schedule III hereto to execute an agreement (a “Lock-up Agreement”) in the form set forth as Exhibit B hereto. York Water has delivered such agreements to the Underwriter Underwriters prior to the date of this Agreement. Appropriate stop transfer instructions will be issued by York Water to the transfer agent for the Common Stock and a copy of such instructions will be delivered to the UnderwriterUnderwriters.
(lm) During the period commencing on the date hereof and ending on the 90th day following the date of the Prospectus, York Water will not, without the prior written consent of the Underwriter Representative (which consent may be withheld at the sole discretion of the UnderwriterRepresentative), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act or liquidate or decrease a “call equivalent position” within the meaning of Rule 16a-1(b) under the Exchange Act, or otherwise dispose of or transfer (or enter into any transaction which is designed to, or would reasonably be expected to, result in the disposition of), or announce the offering of, or file any registration statement under the Act in respect of, any shares of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable or exercisable for or convertible into shares of Common Stock (other than as contemplated by this Agreement with respect to the Shares); provided, however, that York Water may issue shares of Common Stock under York Water’s Dividend Reinvestment and Direct Stock Purchase Plan and York Water’s Employee Stock Purchase Plan. Notwithstanding the foregoing, if (x) during the last 17 days of the 90-day restricted period York Water issues an earnings release or material news or a material event relating to York Water occurs, or (y) prior to the expiration of the 90-day restricted period, York Water announces that it will release earnings results during the 16-day period beginning on the last day of the 90-day period, the restrictions imposed in this clause shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. York Water will provide the Underwriter Underwriters with prior notice of any announcement described in clause (y) of the preceding sentence that gives rise to an extension of the restricted period.
(mn) For a period of three years from the Effective Initial Sale Time, York Water will use all reasonable efforts to maintain the listing of the Common Stock (including, without limitation, the Shares) on the NASDAQ Global Select Market or on a national securities exchange.
(no) York Water shall, at its sole cost and expense, supply and deliver to each of the Underwriter Underwriters and to the Underwriter’s Underwriters’ counsel, within a reasonable period from the Closing Date, two one complete bound sets set of transaction documentsdocuments for each such party.
(op) York Water will use the net proceeds from the sale of the Shares to be sold by it hereunder substantially in accordance with the description set forth under the caption “Use of Proceeds” in the Prospectus.
Appears in 1 contract
