Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows: (a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof. (b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act. (c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters. (d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus. (e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome. (g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event. (h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement. (i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 29 contracts
Samples: Underwriting Agreement (Public Service Co of Oklahoma), Underwriting Agreement (Ohio Power Co), Underwriting Agreement (Appalachian Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 17 contracts
Samples: Underwriting Agreement (Ohio Power Co), Underwriting Agreement (Ohio Power Co), Underwriting Agreement (Appalachian Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives Underwriters and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Underwriters may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Underwriters a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Underwriters sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesUnderwriters) to whom principal amounts of the Notes may have been sold by the Representatives Underwriters for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Underwriters may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Underwriters in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesUnderwriters.
Appears in 8 contracts
Samples: Underwriting Agreement (Ohio Power Co), Underwriting Agreement (AEP Transmission Company, LLC), Underwriting Agreement (Ohio Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During , such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceasesCompany, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(w) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(w) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(x) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 6 contracts
Samples: Underwriting Agreement (CMS Energy Corp), Underwriting Agreement (CMS Energy Corp), Underwriting Agreement (CMS Energy Corp)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 6 contracts
Samples: Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 5 contracts
Samples: Underwriting Agreement (Appalachian Power Co), Underwriting Agreement (Southwestern Electric Power Co), Underwriting Agreement (Indiana Michigan Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating agencies referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During , such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceasesCompany, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(w) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(x) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 5 contracts
Samples: Underwriting Agreement (CMS Energy Corp), Underwriting Agreement (CMS Energy Corp), Underwriting Agreement (CMS Energy Corp)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file any Prospectus Supplement relating to the Prospectus [Unsecured Notes] with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or the Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable reason-able effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes [Unsecured Notes] may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes [Unsecured Notes] for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes [Unsecured Notes] by the respective Underwriters) in connection with the issuance and delivery of the [Unsecured Notes], except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Hunton & Xxxxxxxx LLP, counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes [Unsecured Notes] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Hunton & Xxxxxxxx LLP, counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes [Unsecured Notes] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes [Unsecured Notes] ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes [Unsecured Notes] of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 5 contracts
Samples: Underwriting Agreement (Southwestern Electric Power Co), Underwriting Agreement (Public Service Co of Oklahoma), Underwriting Agreement (Southwestern Electric Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 4 contracts
Samples: Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives Underwriters and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Underwriters may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Underwriters a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Underwriters sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesUnderwriters) to whom principal amounts of the Notes may have been sold by the Representatives Underwriters for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Underwriters may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Underwriters in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.Underwriters
Appears in 4 contracts
Samples: Underwriting Agreement (AEP Transmission Company, LLC), Underwriting Agreement (AEP Transmission Company, LLC), Underwriting Agreement (AEP Transmission Company, LLC)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesDebentures) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Debentures and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Debentures may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes Debentures within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase or the Option Settlement Date, as applicable, on which the distribution of the Notes Debentures ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes Debentures of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
(j) The Company will use its best efforts to list, subject to notice of issuance, the Debentures on the New York Stock Exchange.
Appears in 4 contracts
Samples: Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Mxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 4 contracts
Samples: Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Mxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 3 contracts
Samples: Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 3 contracts
Samples: Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (Appalachian Power Co), Underwriting Agreement (Appalachian Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesSecurities) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representatives, upon request, a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Securities and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, immediately to notify the Underwriters of such event and forthwith to prepare and furnish, at its own expense during the period ending nine months from the date of this Agreement, and thereafter at the Underwriters' expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the Representatives) to whom principal amounts of the Notes Securities may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Securities by the respective Underwriters, but including all amounts relating to (i) the Company's costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any "road show" undertaken in connection with the marketing of the Securities; (ii) the listing of the Securities on the New York Stock Exchange; (iii) the preparation of the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement (and any amendments or supplements thereto); (iv) the sale and delivery of the Securities; (v) the reasonable fees and disbursements of counsel and accountants for the Company and any paying agent, the Forward Purchase Contract Agent and the, Securities Intermediary and Custodial Agent ; and (vi) the printing and delivery of the Preliminary Prospectus Supplement and the Prospectus Supplement) in connection with the issuance sale and delivery of the NotesSecurities, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of _____________________, counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 9(b) or 10 13(ii) hereof, to pay the fees and disbursements of _____________________, counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,00050,000, incurred in connection with the financing contemplated by this Agreement.
(i) During To use its best efforts to cause the period from Securities to be accepted for clearance and settlement through the date hereof and continuing to and including facilities of The Depositary Trust Company.
(j) The Company will timely file any certificate required by the earlier of (i) 1935 Act in connection with the date which is after the Time of Purchase on which the distribution sale of the Notes ceasesSecurities.
(k) The Company will not, as determined by without the Representatives in their sole discretionprior written consent of the Representatives, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any Notes transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any substantially person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1 under the 1934 Act, any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock other than as provided in this Agreement; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that (i) the Company may issue and sell up to 18,400,000 shares of its Common Stock in the concurrent offering contemplated by the Prospectus and (ii) the Company may issue and sell Common Stock pursuant to the terms of any employee stock option plan, stock ownership plan, dividend reinvestment plan or any other similar securities plan of the Company without the consent in effect as of the Representativesdate hereof and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding as of the date hereof.
(l) To use its reasonable efforts to effect the listing of the Securities on the New York Stock Exchange.
Appears in 3 contracts
Samples: Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesSecurities) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representatives, upon request, a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Securities and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, immediately to notify the Underwriters of such event and forthwith to prepare and furnish, at its own expense during the period ending nine months from the date of this Agreement, and thereafter at the Underwriters' expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the Representatives) to whom principal amounts of the Notes Securities may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Securities by the respective Underwriters, but including all amounts relating to (i) the Company's costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any "road show" undertaken in connection with the marketing of the Securities; (ii) the listing of the Securities on the New York Stock Exchange; (iii) the preparation of the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement (and any amendments or supplements thereto); (iv) the sale and delivery of the Securities; (v) the reasonable fees and disbursements of counsel and accountants for the Company, the Trustee and any paying agent, the Forward Purchase Contract Agent and the Collateral Agent, Securities Intermediary and Custodial Agent and the Remarketing Agent; and (vi) the printing and delivery of the Preliminary Prospectus Supplement and the Prospectus Supplement) in connection with the issuance sale and delivery of the NotesSecurities, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 9(b) or 10 13(ii) hereof, to pay the fees and disbursements of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,00050,000, incurred in connection with the financing contemplated by this Agreement.
(i) During To use its best efforts to cause the period from Securities to be accepted for clearance and settlement through the date hereof and continuing to and including facilities of The Depositary Trust Company.
(j) The Company will timely file any certificate required by the earlier of (i) 1935 Act in connection with the date which is after the Time of Purchase on which the distribution sale of the Notes ceasesSecurities.
(k) The Company will not, as determined by without the Representatives in their sole discretionprior written consent of the Representatives, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any Notes transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any substantially person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1 under the 1934 Act, any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock other than as provided in this Agreement; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that (i) the Company may issue and sell up to 18,400,000 shares of its Common Stock in the concurrent offering contemplated by the Prospectus and (ii) the Company may issue and sell Common Stock pursuant to the terms of any employee stock option plan, stock ownership plan, dividend reinvestment plan or any other similar securities plan of the Company without the consent in effect as of the Representativesdate hereof and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding as of the date hereof.
(l) To use its reasonable efforts to effect the listing of the Securities on the New York Stock Exchange.
Appears in 3 contracts
Samples: Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc), Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 2 contracts
Samples: Underwriting Agreement (Southwestern Electric Power Co), Underwriting Agreement (Public Service Co of Oklahoma)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Moody’s and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 2 contracts
Samples: Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co)
Certain Covenants of the Company. In further consideration consider- ation of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file any Prospectus Supplement relating to the Prospectus [Debt Securities] with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to either of the Registration Statement, Pricing Prospectus Statements or the Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use either of the Pricing Prospectus or the Prospectus Registration Statements or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement Statements as initially filed with the Commission and of all amendments thereto (exclusive of exhibits)thereto, other than amendments relating solely to securities other than the Notes [Debt Securities] (exclusive of exhibits), and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished are fur- nished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes [Debt Securities] may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes [Debt Securities] for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes [Debt Securities] by the respective Underwriters) in connection with the issuance and delivery of the Notes[Debt Securities], except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the UnderwritersUnderwxxxxxx, only in xxxx xx the events provided in paragraph para- graph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes [Debt Securities] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Dewey Ballantine, counsel to the UnderwritersUnderwxxxxxx, andxxx, if xx the Underwriters shall not take up and pay for the Notes [Debt Securities] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the [Debt Securities].
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes [Debt Securities] ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes [Debt Securities] of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.]
Appears in 2 contracts
Samples: Underwriting Agreement (Appalachian Power Co), Underwriting Agreement (Appalachian Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors, (vi) all expenses and application fees related to the listing of the Securities on the NYSE and (vii) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During , such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceasesCompany, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell sell, grant any option for the sale of or otherwise dispose of any Notes Securities, any security convertible into, exchangeable into or exercisable for the Securities or any debt securities substantially similar to the Securities (except for the Securities) for a period from the date hereof and continuing for and including a period of 30 days; provided, however, that this covenant shall not apply to issuances of (i) commercial paper or other debt securities with scheduled maturities of less than one year or (ii) any Senior Indebtedness (as defined in the Time of Sale Prospectus).
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To use its reasonable best efforts to effect the listing of the Securities on the NYSE no later than the 30th day following the Time of Purchase.
(u) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(v) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(w) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 2 contracts
Samples: Underwriting Agreement (CMS Energy Corp), Underwriting Agreement (CMS Energy Corp)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 ______ in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000________, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 2 contracts
Samples: Underwriting Agreement (Indiana Michigan Power Co), Underwriting Agreement (Public Service Co of Oklahoma)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(w) (i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 2 contracts
Samples: Underwriting Agreement (Consumers Energy Co), Underwriting Agreement (Consumers Energy Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 87, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 8 or 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement
(i) To timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 0000 (xxx 0000 Xxx) in connection with the sale of the Notes.
(ij) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 2 contracts
Samples: Underwriting Agreement (Ohio Power Co), Underwriting Agreement (Columbus Southern Power Co /Oh/)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 2 contracts
Samples: Underwriting Agreement (Ohio Power Co), Underwriting Agreement (Columbus Southern Power Co /Oh/)
Certain Covenants of the Company. In further consideration of The Company hereby agrees with the agreements of the Underwriters herein contained, the Company covenants as followsAgent:
(a) As soon as practicablebefore amending or supplementing the Registration Statement or the Prospectus, and or, during any period of time in any event within which a Prospectus relating to the time prescribed by Rule 424 Shares is required to be delivered under the Act, to file furnish to the Prospectus Agent a copy of each such proposed amendment or supplement before filing any such amendment or supplement with the Commission and Commission;
(b) to make any other required filings pursuant no post-effective amendment or supplement to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or the Prospectus which shall have been disapproved by the Agent by notice in writing to the Company after notice thereof and reasonable opportunity to review and comment thereon;
(c) to prepare, with respect to any Shares sold by the Company to the Agent pursuant to this Agreement, a Pricing Supplement with respect to such Shares in a form previously approved by the Agent and to file such Pricing Supplement pursuant to Rule 424(b) under the Act not later than the close of business of the Commission on the third business day after any Purchase Date on which an aggregate of __% or more of the Shares were sold, and provide each such Pricing Supplement to the Agent at the same time;
(d) to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act for so long as the delivery of a Prospectus is required in connection with the offering or sale of the Shares, and during such same period to advise the Agent, promptly after the Company receives notice thereof, of the time when any amendment to the Registration Statement has been filed or has become effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, or the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Pricing Prospectus Shares, or the Prospectus suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threat threatening of any proceedings proceeding for that purpose andany such purpose, if such an order should be entered or of any request by the Commission, to make every reasonable effort to obtain Commission for the prompt lifting amendment or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, supplementation of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters additional information; and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, in the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement event of the Company and issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification, to use promptly its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.reasonable best efforts to obtain its withdrawal;
(f) To use its best efforts to qualify furnish such information as may be required and otherwise to cooperate in qualifying the Notes Shares for offer offering and sale under the securities or “blue sky” sky laws of such jurisdictions states as the Representatives you may reasonably designate and shall to maintain such qualifications in effect so long as required for the offering and sale distribution of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, Shares; provided that the Company shall not be required to qualify as a foreign corporation corporation, become a dealer of securities, or become subject to taxation in, or to file a consent to the service of process or under the laws of any such state (except service of process with respect to file annual reports or the offering and sale of the Shares); and to comply with any other requirements deemed promptly advise you of the receipt by the Company of any notification with respect to be unduly burdensome.the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation of any proceeding for such purpose;
(g) To to make available to the Agent in Stamford, Connecticut, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Agent, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Agent may reasonably request for the purposes contemplated by the Act; and for so long as this agreement is in effect, the Company will prepare and file promptly, subject to Section 5(b) hereof, such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to comply with the requirements of Section 10(a)(3) of the Act;
(h) to furnish to you for a period of three years from the date of this Agreement (i) copies of any reports or other communications which the Company shall send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the Commission, and (iii) copies of documents or reports filed with any national securities exchange on which any class of securities of the Company is listed, and to furnish to you from time to time during the term of this Agreement such other information as you may reasonably request regarding the Company or the Subsidiaries, in each case as soon as such reports, communications, documents or information becomes available;
(i) if at any time during the term of this Agreement any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of counsel for the Agent or counsel for the Company, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in light of the circumstances existing at the time the Prospectus is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Act, immediate notice shall be given, and confirmed in writing, to the Agent to cease the solicitation of offers to purchase the Shares in the Agent's capacity as agent and to cease sales of any Shares the Agent may then own as principal, and the Company will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements;
(j) to generally make available to its security holders as soon as practicable, but not later than 90 days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11(a) under the Act) covering each twelve-month period beginning, in each case, not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in such Rule 158) of the Registration Statement with respect to each sale of Shares;
(k) to furnish to you two signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto, including all exhibits thereto and all documents incorporated by reference therein;
(l) to apply the net proceeds from the sale of the Shares in the manner set forth under the caption "Use of Proceeds" in the Prospectus;
(m) to pay all costs, expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with (i) the issuance preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Agent and to dealers (including costs of mailing and shipment), (ii) the registration, issue, sale and delivery of the NotesShares, except that (iii) the Company shall be required producing, word processing and/or printing of this Agreement, any powers of Attorney and any closing documents (including compilations thereof) and the reproduction and/or printing and furnishing of copies of each thereof to pay the Agent (including costs of mailing and shipment), (iv) the qualification of the Shares for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including the legal fees and filing fees and other disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel for the Agent) and the printing and furnishing of copies of any blue sky surveys or legal investment surveys to the UnderwritersAgent, only in (v) the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure listing of the Company to comply with Shares on the Exchange and any registration thereof under the 1934 Act, (vi) any filing for review of the conditions specified in Section 3 hereofpublic offering of the Shares by the NASD, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay including the fees and disbursements of counsel to the UnderwritersAgent in connection therewith, and, if the Underwriters shall not take up (vii) all other fees and pay for the Notes due disbursements of counsel to the failure of Company and counsel to the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretionAgent, and (iiviii) the performance of the Company's other obligations hereunder; provided that the Agent shall be responsible for any transfer taxes on resale of Shares by it;
(n) to furnish to you, before filing with the Commission subsequent to the effective date which is 30 days after of the Time Registration Statement and during the period referred to in paragraph (g) above, a copy of Purchaseany document proposed to be filed pursuant to Section 13, 14 or 15(d) of the 1934 Act;
(o) to use its reasonable best efforts to cause the Shares to be listed on the Exchange; and
(p) to use its best efforts to satisfy, or cause to be satisfied, the Company agrees not to offer, sell, contract to sell conditions set forth below in Section 6 on or otherwise dispose in respect of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representativeseach Closing Date hereunder.
Appears in 1 contract
Samples: Distribution Agreement (Aphton Corp)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file any Prospectus Supplement relating to the Prospectus [Unsecured Notes] with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or the Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the [Unsecured Notes) ] as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes [Unsecured Notes] and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes [Unsecured Notes] may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes [Unsecured Notes] for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes [Unsecured Notes] by the respective Underwriters) in connection with the issuance and delivery of the [Unsecured Notes], except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine LLP, counsel to the Underwriters, only in the events oxxx xx xxx xxxxxx provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes [Unsecured Notes] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Dewey Ballantine LLP, counsel to the Underwriters, and, if the Underwriters Xxxxxwriters shall not take up and pay for the Notes [Unsecured Notes] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the [Unsecured Notes].
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes [Unsecured Notes] ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes [Unsecured Notes] of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.]
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:: #3001748v5
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.. #3001748v5
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Samples: Underwriting Agreement (AEP Transmission Company, LLC)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters Underwriter herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Underwriter and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the UnderwritersUnderwriter, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Underwriter may reasonably request; and in case any the Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any the Underwriter, upon request, at the expense of such the Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Underwriter a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other UnderwritersNotes.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters Underwriter and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesUnderwriter) to whom principal amounts of the Notes may have been sold by the Representatives Underwriter for the accounts of the Underwriters Underwriter and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters Underwriter an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Underwriter may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters Underwriter and their its counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective UnderwritersUnderwriter) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the UnderwritersUnderwriter, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters Underwriter hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters Underwriter shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the UnderwritersUnderwriter, and, if the Underwriters Underwriter shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters Underwriter for their its reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Underwriter in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesUnderwriter.
Appears in 1 contract
Samples: Underwriting Agreement (Columbus Southern Power Co /Oh/)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives Underwriters and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Underwriters may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Underwriters a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Underwriters sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesUnderwriters) to whom principal amounts of the Notes may have been sold by the Representatives Underwriters for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Underwriters may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Underwriters in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesUnderwriters.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representative, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representative of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters Representatives and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company (except for the concurrent offering of the Company’s floating rate notes) without the consent of the RepresentativesRepresentative.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representative, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representative of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) a. As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) b. To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies #3000098v4 4 of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) c. To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) d. For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) e. As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) f. To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be #3000098v4 5 required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) g. To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) h. If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) i. During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Shares as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Shares in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the Act1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Shares; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such Shares and prior to the Time of Delivery for such Shares to which the Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Shares, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Comission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus (or Prospectus in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or for additional information with respect thereto or sale of such Shares; to advise the Representatives, promptly after it receives notice thereof, of the entry of an order suspending the effectiveness of time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Shares, including, in the Pricing Prospectus case of Preferred Stock that is convertible into Common Stock, the shares of Common Stock issuable upon conversion of such shares of Preferred Stock, 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 1933 Act, of the suspension of the qualification of such Shares or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings for that purpose andsuch stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Shares or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Shares by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law Rule 430B(h) under the 1933 Act, to deliver prepare a form of prospectus, to give the Representatives notice thereof and to file such form of prospectus (or pursuant to Rule 424(b) under the Act not later than may be required to deliver but for by Rule 172 424(b) under the Act), as many copies ; and to make no further amendment or supplement to such form of the Prospectus (as supplemented or amended if the Company prospectus which shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as reasonably be disapproved by the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Shares, including in the case of Preferred Stock that is convertible into Common Stock, the shares of Common Stock issuable upon conversion of such shares of Preferred Stock and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Dislcosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act or the 1934 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Shares and the shares of Common Stock issuable upon conversion of shares of Preferred Stock, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares, including the shares of Common Stock issuable upon conversion of shares of Preferred Stock, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 under the Act158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best efforts to qualify effect and maintain the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale listing of the Notes within six months after Shares, including shares of Common Stock issuable upon conversion of any shares of Preferred Stock, any Convertible Securities, if applicable, on the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensomeNew York Stock Exchange.
(g) To pay all expensesthe extent provided in the Terms Agreement, fees the Company will not, between the date of the applicable Terms Agreement and taxes a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any securities of the same class or series or ranking on parity with such Shares (other than transfer taxes on resales of the Notes by the respective Underwriters) Shares which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Shares that are convertible into or exchangeable or exercisable for Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in connection with the issuance and delivery of the Noteseach case, except that the Company shall as may otherwise be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only provided in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventapplicable Terms Agreement.
(h) If applicable, the Underwriters shall not take up Company will reserve and pay keep available at all times, free of preemptive or other similar rights, shares of Common Stock for the Notes due to the failure purpose of enabling the Company to comply with satisfy any obligation to issue such shares upon conversion of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions any shares of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this AgreementPreferred Stock.
(i) During the For a period from the date hereof and continuing to and including the earlier of (i) the date which is five years after the applicable Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of PurchaseDelivery, the Company agrees not will furnish to offeryou and to each Underwriter that so requests copies of all annual reports, sellquarterly reports and current reports filed with the Commission on Forms 10-K, contract 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to sell the Company’s business or otherwise dispose of any Notes finances as shall be furnished by the Company to its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Company Shares, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or any substantially similar securities 15 of the Company without 1934 Act within the consent of time periods required by the Representatives1934 Act and the 1934 Act Regulations.
(k) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representative, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representative of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file any Prospectus Supplement relating to the Prospectus [Unsecured Notes] with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or the Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the [Unsecured Notes) ] as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes [Unsecured Notes] and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes [Unsecured Notes] may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes [Unsecured Notes] for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes [Unsecured Notes] by the respective Underwriters) in connection with the issuance and delivery of the [Unsecured Notes], except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine LLP, counsel to the Underwriters, only in the events xx xxx xxents provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes [Unsecured Notes] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Dewey Ballantine LLP, counsel to the UnderwritersUnderwxxxxxx, andxxx, if the xx xhe Underwriters shall not take up and pay for the Notes [Unsecured Notes] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the [Unsecured Notes].
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes [Unsecured Notes] ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes [Unsecured Notes] of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.]
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants as followsagrees:
(a) As soon as practicablepossible after the execution and delivery of this Agreement to file, and in any event within the time prescribed by Rule 424 under the Actor mail for filing, to file the Prospectus with the Commission and make any other required filings pursuant to its Rule 433 424 under the ActAct and, if and when required at any time after such execution and delivery, to file amendments to the applications the Company has previously filed with any state regulatory agencies having jurisdiction to govern the Company's issuance of its securities setting forth, among other things, the necessary information with respect to the price and terms of offering of the Purchased Bonds;
(b) To file no amendment or supplement to the Registration Statement or Prospectus subsequent to the execution of this Agreement to which you object in writing unless, in the opinion of counsel to the Company, such filing is required by law;
(c) To furnish such proper information as may be required and otherwise to cooperate in qualifying the Purchased Bonds for sale under the laws of such jurisdictions as you may designate and in determining their eligibility for investment under the laws of such jurisdictions; provided that the Company shall not hereby be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(d) To the extent not previously furnished to you, to furnish to you two signed copies of the Registration Statement, as initially filed with the Commission, of all amendments thereto, and of all documents incorporated by reference therein (including all exhibits filed therewith, other than exhibits which have previously been furnished to you and exhibits incorporated by reference in such documents), and to furnish to you sufficient unsigned copies of the foregoing (other than exhibits) for distribution of a copy to you and to each of the other Underwriters (if any);
(e) To deliver to the Underwriters without charge as soon as practicable after the execution and delivery of this Agreement and thereafter from time to time to furnish to the Underwriters, without charge, as many copies of the Prospectus in final form and any documents incorporated by reference therein at or after the date thereof (and of the Registration Statement as amended or supplemented, if the Company is advised thereof, to shall have made any amendment or supplement after the effective date of the Registration Statement) as you or the respective Underwriters may reasonably request for the purposes contemplated by the Act;
(f) To advise the Representatives and confirm the you promptly (confirming such advice in writing writing) of any official request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto thereto, or of official notice of institution of proceedings for, or the entry of an of, a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, thereof as soon as practicable (and possible, or of the suspension of qualification of the Purchased Bonds for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose;
(g) To advise the Underwriters of the happening of any event known to the Company within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver which a prospectus (or required relating to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter Purchased Bonds is required to deliver a prospectus after be delivered under the expiration of nine months after Act which, in the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary judgment of the Company, would require the making of any change in the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or any amended or supplemented Prospectus or in the information incorporated by reference therein so that as thereafter delivered to purchasers such Prospectus will not include an 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 when the Pricing Prospectus or the Prospectus is delivered to a purchaserunder which they were made, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith and on request to prepare and furnish, at its own expense, furnish to the Underwriters and to dealers and other persons designated by you such amendments or supplements (whose names and addresses will be furnished including appropriate filings under the Exchange Act) to the Prospectus as may be necessary to reflect any such change, provided that the Company shall be so obligated only so long as the Company is notified of unsold allotments (failure by the Representatives) Underwriters to whom principal amounts of so notify the Notes may have been sold by Company cancels the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.Company's obligation under this Section 3(g));
(eh) As soon as practicable, the Company will to make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and (as contemplated by Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws covering a period of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six twelve months after the effective date hereof (as the term "effective date" is defined in Rule 158) of the Registration Statement;
(i) To pay the reasonable fees and itself to payexpenses of counsel for the Underwriters, or and to reimburse the Underwriters for their reasonable out-of-pocket expenses in- curred in contemplation of the performance of this Agreement, in the event that the Underwriters' Bonds are not delivered to and their counsel fortaken up and paid for by the Underwriters hereunder for any reason whatsoever except the failure or refusal of any Underwriter to take up and pay for Underwriters' Bonds for some reason not permitted by the terms of this Agreement, reasonable filing the Underwriters agreeing to pay the fees and expenses of counsel for the Underwriters in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.event;
(gj) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel for the Underwriters except as set forth under 3(i) above or (iv) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus and the Prospectus, any documents incorporated by reference therein at or after the date thereof and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers, (ii) the issue, sale and delivery of the Purchased Bonds, (iii) the printing and reproduction of this Agreement and the opinions and letters referred to in Section 4(a) hereof, (iv) the qualification of the Purchased Bonds for sale and determination of their eligibility for investment under state laws as aforesaid, including the legal fees (not to exceed $3,000) and all filing fees and disbursements of counsel for the Underwriters and all other filing fees, and the printing and furnishing of copies of the "Blue Sky Survey" and the "Legal Investment Survey" to the Underwriters and to dealers, (v) the rating of the Purchased Bonds by national rating agencies and (vi) the performance of the Company's other obligations hereunder;
(k) To use best efforts to cause the Mortgage to be duly filed for record, appropriate notices of such filing to be recorded, and an appropriate financing statement to be filed, wherever necessary or appropriate to perfect the lien of the Mortgage for the benefit of the Purchased Bonds prior to the time of purchase;
(l) To furnish to the Underwriters, and, if at or before the Underwriters shall not take up and pay for time of filing with the Notes due Commission subsequent to the failure effective date of the Company Registration Statement and prior to comply with any the termination of the conditions specified in distribution of the Purchased Bonds, a copy of any document proposed to be filed pursuant to Section 3 hereof13(a), to reimburse 13(d), 14 or 15(d) of the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.Exchange Act; and
(im) During the period beginning from the date hereof of this Agreement and continuing to and including the earlier later of (i) the date which is after termination of trading restrictions on the Time of Purchase on which the distribution of the Notes ceasesPurchased Bonds, as determined notified to the Company by the Representatives in their sole discretionUnderwriters, and (ii) the date which is 30 days after the Time time of Purchasepurchase, the Company agrees will not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar debt securities of the Company which mature more than one year after the time of purchase and which are substantially similar to the Purchased Bonds, without the consent Under- writers' prior written consent; provided, however, that in no event shall the foregoing period extend more than fifteen calendar days from the date of the Representativesthis Agreement.
Appears in 1 contract
Certain Covenants of the Company. In further consideration consider- ation of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially in the form filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished are fur- nished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Debentures may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the Underwriters, only in the xx xxe events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements dis- bursements of Dewey Ballantine, counsel to the UnderwritersUnderwrixxxx, andxxx, if the xx xxe Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes Debentures ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes junior subordinated deferrable interest debentures of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
(j) The Company will use its best efforts to list, subject to notice of issuance, the Debentures on the New York Stock Exchange.
(k) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the Debentures.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesShares) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representatives, upon request, a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Shares and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, immediately to notify the Underwriters of such event and forthwith to prepare and furnish, at its own expense during the period ending nine months from the date of this Agreement, and thereafter at the Underwriters' expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the Representatives) to whom principal amounts of the Notes Shares may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Shares for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Shares by the respective Underwriters, but including all amounts relating to (i) the Company's costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any "road show" undertaken in connection with the marketing of the Shares; (ii) the listing of the Shares on the New York Stock Exchange; (iii) the preparation of the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement (and any amendments or supplements thereto); (iv) the sale and delivery of the Shares; (v) the reasonable fees and disbursements of counsel and accountants for the Company; and (vi) the printing and delivery of the Preliminary Prospectus Supplement and the Prospectus Supplement) in connection with the issuance sale and delivery of the NotesShares, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Shares due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 9(b) or 10 13(ii) hereof, to pay the fees and disbursements of Xxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,00050,000, incurred in connection with the financing contemplated by this Agreement.
(i) During To use its best efforts to cause the period from Shares to be accepted for clearance and settlement through the date hereof and continuing to and including facilities of The Depositary Trust Company.
(j) The Company will timely file any certificate required by the earlier of (i) 1935 Act in connection with the date which is after the Time of Purchase on which the distribution sale of the Notes ceasesShares.
(k) The Company will not, as determined by without the Representatives in their sole discretionprior written consent of the Representatives, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any Notes transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any substantially person in privity with the Company or any affiliate of the Company) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1 under the 1934 Act, any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock other than as provided in this Agreement; or publicly announce an intention to effect any such transaction, for a period of 90 days after the date of the Underwriting Agreement, provided, however, that (i) the Company may issue and sell its 9.25% Equity Units in the concurrent offering contemplated by the Prospectus and (ii) the Company may issue and sell Common Stock pursuant to the terms of any employee stock option plan, stock ownership plan, dividend reinvestment plan or any other similar securities plan of the Company without the consent in effect as of the Representativesdate hereof and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding as of the date hereof.
(l) To use its reasonable efforts to effect the listing of the Shares on the New York Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Shares as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Shares in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the Act1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Shares; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such Shares and prior to the Time of Delivery for such Shares to which the Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Shares, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Comission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus (or Prospectus in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or for additional information with respect thereto or sale of such Shares; to advise the Representatives, promptly after it receives notice thereof, of the entry of an order suspending the effectiveness of time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Shares, including, in the Pricing Prospectus case of Preferred Stock that is convertible into Common Stock, the shares of Common Stock issuable upon conversion of such shares of Preferred Stock, 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 1933 Act, of the suspension of the qualification of such Shares or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings for that purpose andsuch stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Shares or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Shares by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law Rule 430B(h) under the 1933 Act, to deliver prepare a form of prospectus, to give the Representatives notice thereof and to file such form of prospectus (or pursuant to Rule 424(b) under the Act not later than may be required to deliver but for by Rule 172 424(b) under the Act), as many copies ; and to make no further amendment or supplement to such form of the Prospectus (as supplemented or amended if the Company prospectus which shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as reasonably be disapproved by the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Shares, including in the case of Preferred Stock that is convertible into Common Stock, the shares of Common Stock issuable upon conversion of such shares of Preferred Stock and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Dislcosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act or the 1934 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Shares and the shares of Common Stock issuable upon conversion of shares of Preferred Stock, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares, including the shares of Common Stock issuable upon conversion of shares of Preferred Stock, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 under the Act158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best efforts to qualify effect and maintain the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale listing of the Notes within six months after Shares, including shares of Common Stock issuable upon conversion of any shares of Preferred Stock, any Convertible Securities, if applicable, on the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensomeNew York Stock Exchange.
(g) To pay all expensesthe extent provided in the Terms Agreement, fees the Company will not, between the date of the applicable Terms Agreement and taxes a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any securities of the same class or series or ranking on parity with such Shares (other than transfer taxes on resales of the Notes by the respective Underwriters) Shares which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Shares that are convertible into or exchangeable or exercisable for Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in connection with the issuance and delivery of the Noteseach case, except that the Company shall as may otherwise be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only provided in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventapplicable Terms Agreement.
(h) If applicable, the Underwriters shall not take up Company will reserve and pay keep available at all times, free of preemptive or other similar rights, shares of Common Stock for the Notes due to the failure purpose of enabling the Company to comply with satisfy any obligation to issue such shares upon conversion of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions any shares of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this AgreementPreferred Stock.
(i) During the For a period from the date hereof and continuing to and including the earlier of (i) the date which is five years after the applicable Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of PurchaseDelivery, the Company agrees not will furnish to offeryou and to each Underwriter that so requests copies of all annual reports, sellquarterly reports and current reports filed with the Commission on Forms 10-K, contract 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to sell the Company's business or otherwise dispose of any Notes finances as shall be furnished by the Company to its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Company Shares, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or any substantially similar securities 15 of the Company without 1934 Act within the consent of time periods required by the Representatives1934 Act and the 1934 Act Regulations.
(k) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesSecurities) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Securities and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes Securities may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus. In case any Underwriter is required to deliver a prospectus in connection with the offering of Securities after the expiration of the period specified in the preceding sentence, the Company, upon the request of such Underwriter, will furnish to such Underwriter, at the expense of such Underwriter, a reasonable quantity of a supplemented or amended prospectus, or supplements or amendments to the Pricing Prospectus or the Prospectus, complying with Section 10(a) of the Act.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes Securities within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Securities by the respective Underwriters, but including all amounts relating to (i) the Company’s costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities; (ii) the listing of the Securities on the New York Stock Exchange; (iii) the preparation of the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement (and any amendments or supplements thereto); (iv) the sale and delivery of the Securities; (v) the reasonable fees and disbursements of counsel and accountants for the Company, the Trustee and any paying agent, the Purchase Contract Agent and the Collateral Agent, Securities Intermediary and Custodial Agent and the Remarketing Agent; and (vi) the printing and delivery of the Preliminary Prospectus Supplement, the Prospectus Supplement and any Permitted Free Writing Prospectus) in connection with the issuance sale and delivery of the NotesSecurities, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (fg) of this Section 4) of counsel to the Underwriters, Underwriters only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000100,000, incurred in connection with the financing contemplated by this Agreement.
(i) During The Company will not, without the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution prior written consent of the Notes ceasesRepresentatives, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any Notes transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any substantially similar securities person in privity with the Company or any affiliate of the Company) directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1 under the Securities Exchange Act of 1934 (1934 Act), any Securities, Purchase Contracts, shares of Common Stock or other capital stock of the Company or any securities convertible into, or exercisable, or exchangeable for, Securities, Purchase Contracts, shares of Common Stock or other capital stock of the Company other than as provided in this Agreement; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may, without the prior written consent of the Representatives, issue and sell Common Stock pursuant to the terms of any employee stock option plan, stock ownership plan, dividend reinvestment plan, long-term incentive plan, or any other similar plan of the Company in effect as of the date hereof and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding as of the date hereof.
(j) To use its reasonable efforts to cause the Securities to be accepted for clearance and settlement through the facilities of The Depositary Trust Company.
(k) To use its reasonable efforts to effect the listing of the Securities on the New York Stock Exchange.
(l) If at any time when the Securities remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Securities, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Underwritten Securities as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Underwritten Securities in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the Act1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Underwritten Securities; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, Pricing the Base Prospectus or Prospectus the Prospectus, as then amended or for additional information with respect thereto or supplemented, after the date of the entry Terms Agreement relating to such Underwritten Securities and prior to the Time of an order suspending Delivery for such Underwritten Securities to which the effectiveness Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any NYDOCS01/1291680.9 such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Underwritten Securities, substantially in a form approved by the Representatives (attached as Exhibit B hereto) and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Preliminary Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or sale of such Underwritten Securities; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Pricing Preliminary Prospectus or other prospectus or threatening any proceeding for that purpose or pursuant to Section 8A of the 1933 Act relating to such Underwritten Securities, including, in the case of Convertible Securities, the shares of stock issuable upon conversion of the Convertible Securities, 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 1933 Act, of the suspension of the qualification of such Underwritten Securities or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings such stop order or of any such order preventing or suspending the use of the Preliminary Prospectus or other prospectus or any proceeding for that purpose andor pursuant to Section 8A of the 1933 Act relating to such Underwritten Securities or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Underwritten Securities by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law to deliver a prospectus (or required to deliver but for Rule 172 430B(h) under the 1933 Act), as many copies to prepare a form of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments theretoprospectus, other than supplements or amendments relating solely to securities other than the Notes) as give the Representatives notice thereof and to file such form of prospectus pursuant to Rule 424(b) under the 1933 Act not later than may reasonably requestbe required by Rule 424(b) under the 1933 Act; and in case any Underwriter is required to deliver a make no further amendment or supplement to such form of prospectus which shall reasonably be disapproved by the Representatives promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic NYDOCS01/1291680.9 copies of the Preliminary Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Underwritten Securities, including in the case of Convertible Securities, the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Disclosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act, the 1934 Act or the 1939 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries Subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 under the Act.158). NYDOCS01/1291680.9
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best efforts to qualify effect and maintain the Notes for offer and sale under the securities listing of any shares of Common Stock or “blue sky” laws Preferred Stock issuable upon conversion of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, any Convertible Securities or to reimburse the extent requested by the applicable Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), providedany Convertible Securities, howeverif applicable, that on the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensomeNew York Stock Exchange.
(g) To pay all expensesthe extent provided in the Terms Agreement, fees the Company will not, between the date of the applicable Terms Agreement and taxes a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than transfer taxes on resales of the Notes by the respective Underwriters) Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Convertible Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), or if such Terms Agreement relates to Convertible Securities that are convertible into Preferred Stock, any Preferred Stock or any security convertible into Preferred Stock (except for Preferred Stock issued pursuant to employee benefit plans, dividend reinvestment plans, or employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in connection with the issuance and delivery of the Noteseach case, except that the Company shall as may otherwise be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only provided in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventapplicable Terms Agreement.
(h) If applicable, the Underwriters shall not take up Company will reserve and pay keep available at all times, free of preemptive or other similar rights, shares of Common Stock or Preferred Stock, as the case may be, for the Notes due to the failure purpose of enabling the Company to comply with satisfy any obligation to issue such shares upon conversion of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this AgreementConvertible Securities.
(i) During the For a period from the date hereof and continuing to and including the earlier of (i) the date which is five years after the applicable Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of PurchaseDelivery, the Company agrees not will furnish to offeryou and to each Underwriter that so requests copies of all annual reports, sellquarterly reports and current reports filed with the Commission on Forms 10-K, contract 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to sell the Company’s business or otherwise dispose of finances as shall be furnished by the Company to its shareholders generally; provided that the Company shall have no obligation to furnish any Notes document that is publicly available via the Commission’s XXXXX system.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Company Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or any substantially similar securities 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) The Company without shall pay the consent required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the 1933 Act and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act. NYDOCS01/1291680.9
(l) The Company shall take all reasonable action necessary to enable Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc. (“S&P”), and Xxxxx’x Investors Service Inc. (“Moody’s”) to provide their respective credit ratings of the RepresentativesSecurities in connection with the initial issuance thereof.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Senior Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Senior Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Senior Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Senior Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Senior Notes by the respective Underwriters) in connection with the issuance and delivery of the Senior Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine LLP, counsel to the UnderwritersUnderwriterx, only in the events xxxx xx xxx xvents provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 87, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Senior Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 8 or 9 or 10 hereof, to pay the fees and disbursements of Dewey Ballantine LLP, counsel to the Underwriters, and, if the Underwriters Xnderwriters shall not take up and pay for the Senior Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 (the 1935 Act) in connection with the sale xx xxx Xxxxxx Xxxxx.
(x) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Senior Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Senior Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 1 contract
Certain Covenants of the Company. In further consideration consider- ation of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially in the form filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished are fur- nished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Debentures may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements dis- bursements of Dewey Ballantine, counsel to the UnderwritersUndxxxxxxxxx, andxxx, if the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes Debentures ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes junior subordinated deferrable interest debentures of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
(j) The Company will use its best efforts to list, subject to notice of issuance, the Debentures on the New York Stock Exchange.
(k) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the Debentures.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During , such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceasesCompany, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell sell, grant any option for the sale of or otherwise dispose of any Notes Securities, any security convertible into, exchangeable into or exercisable for the Securities or any debt securities substantially similar to the Securities (except for the Securities) for a period from the date hereof and continuing for and including a period of 30 days; provided, however, that this covenant shall not apply to issuances of (i) commercial paper or other debt securities with scheduled maturities of less than one year or (ii) any Senior Indebtedness (as defined in the Time of Sale Prospectus).
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(w) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(w) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(x) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the #0000000x0 Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or #0000000x0 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(j) The Company shall use the net proceeds received by it from the sale of the Notes pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds.”
Appears in 1 contract
Samples: Underwriting Agreement (Southwestern Electric Power Co)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 _____ in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000______, incurred in connection with the financing contemplated by this Agreement.
(i) To timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 0000 (xxx 0000 Xxx) in connection with the sale of the Notes.
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many electronic copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at electronic copies of the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Underwritten Securities as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Underwritten Securities in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the 1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Underwritten Securities or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the 1933 Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such Underwritten Securities and prior to the Time of Delivery for such Underwritten Securities to which the Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Underwritten Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Comission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus (or Prospectus in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or for additional information with respect thereto or sale of such Underwritten Securities; to advise the Representatives, promptly after it receives notice thereof, of the entry of an order suspending the effectiveness of time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities, including, in the Pricing Prospectus case of Convertible Securities, the shares of stock issuable upon conversion of the Convertible Securities, 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 1933 Act, of the suspension of the qualification of such Underwritten Securities or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings for that purpose andsuch stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Underwritten Securities by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law Rule 430B(h) under the 1933 Act, to deliver prepare a form of prospectus, to give the Representatives notice thereof and to file such form of prospectus (or pursuant to Rule 424(b) under the Act not later than may be required to deliver but for by Rule 172 424(b) under the Act), as many copies ; and to make no further amendment or supplement to such form of the Prospectus (as supplemented or amended if the Company prospectus which shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as reasonably be disapproved by the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Underwritten Securities, including in the case of Convertible Securities, the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Dislcosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act, the 1934 Act or the 1939 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 under the Act.158);
(f) To the extent provided in the applicable Terms Agreements, the Company will use its best efforts to qualify effect and maintain the Notes for offer and sale under the securities listing of any shares of Common Stock or “blue sky” laws Preferred Stock issuable upon conversion of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, any Convertible Securities or to reimburse the extent requested by the applicable Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), providedany Convertible Securities, howeverif applicable, that on the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensomeNew York Stock Exchange.
(g) To pay all expensesthe extent provided in the Terms Agreements, fees the Company will not, between the date of the applicable Terms Agreement and taxes a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than transfer taxes on resales of the Notes by the respective Underwriters) Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Convertible Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), or if such Terms Agreement relates to Convertible Securities that are convertible into Preferred Stock, any Preferred Stock or any security convertible into Preferred Stock (except for Preferred Stock issued pursuant to employee benefit plans, dividend reinvestment plans, or employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in connection with the issuance and delivery of the Noteseach case, except that the Company shall as may otherwise be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only provided in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventapplicable Terms Agreement.
(h) If applicable, the Underwriters shall not take up Company will reserve and pay keep available at all times, free of preemptive or other similar rights, shares of Common Stock or Preferred Stock, as the case may be, for the Notes due to the failure purpose of enabling the Company to comply with satisfy any obligation to issue such shares upon conversion of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this AgreementConvertible Securities.
(i) During the For a period from the date hereof and continuing to and including the earlier of (i) the date which is five years after the applicable Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of PurchaseDelivery, the Company agrees not will furnish to offeryou and to each Underwriter that so requests copies of all annual reports, sellquarterly reports and current reports filed with the Commission on Forms 10-K, contract 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to sell the Company's business or otherwise dispose of any Notes finances as shall be furnished by the Company to its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Company Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or any substantially similar securities 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) If the Company without elects to rely upon Rule 462(b), the consent Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the RepresentativesCompany shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the 1933 Act Regulations.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:: #2753352v2 3
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many electronic copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at electronic copies of the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.. #2753352v2 4
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus, Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus, the Prospectus or the any Permitted Free Writing Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the ActAct)(the Prospectus Delivery Period), as many copies of the Prospectus or Permitted Free Writing Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesShares) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Shares and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For The Company will advise the Representative promptly, and confirm such period advice in writing, (i) when any amendment to the Registration Statement has been filed; (ii) when any supplement or amendment to the Prospectus or any Permitted Free Writing Prospectus has been filed; (iii) of time the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing Disclosure Package or any Permitted Free Writing 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, the Pricing Disclosure Package or any such Permitted Free Writing Prospectus is delivered to a purchaser, not misleading; (not exceeding nine monthsiv) after of the date hereof as they are required receipt by law the Company of any notice of objection of the Commission to deliver a prospectus (the use of the Registration Statement or required any post-effective amendment thereto pursuant to deliver but for Rule 172 401(g)(2) under the Act); and (v) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus or suspending any such qualification of the Shares and, if any such order is issued, will use reasonable efforts to obtain as soon as possible the withdrawal thereof.
(e) During the Prospectus Delivery Period, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus, the Prospectus or the any Permitted Free Writing Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, promptly notify the Underwriters of such event and forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Shares may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus, the Prospectus or the any Permitted Free Writing Prospectus or supplements to the Pricing Prospectus, the Prospectus or the any Permitted Free Writing Prospectus.
(ef) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fg) To use its best efforts to qualify the Notes Shares for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes Shares within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gh) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Shares by the respective Underwriters, but including all amounts relating to (i) the Company’s costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the Shares; (ii) the listing of the Shares on the New York Stock Exchange; (iii) the preparation of the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement (and any amendments or supplements thereto); (iv) the sale and delivery of the Shares; (v) the reasonable fees and disbursements of counsel and accountants for the Company; and (vi) the printing and delivery of the Preliminary Prospectus Supplement, the Prospectus Supplement and any Permitted Free Writing Prospectus) in connection with the issuance sale and delivery of the NotesShares, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (fg) of this Section 4) of counsel to the Underwriters, Underwriters only in the events provided in paragraph (hi) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(hi) If the Underwriters shall not take up and pay for the Notes Shares due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Shares due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000100,000, incurred in connection with the financing contemplated by this Agreement.
(ij) During The Company will not, without the period from the date hereof prior written consent of X.X. Xxxxxx Securities Inc. and continuing to and including the earlier of Credit Suisse Securities (iUSA) the date which is after the Time of Purchase on which the distribution of the Notes ceasesLLC, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any Notes transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any substantially person in privity with the Company or any affiliate of the Company) directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1 under the Securities Exchange Act of 1934 (1934 Act), any shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock other than as provided in this Agreement; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may issue and sell Common Stock pursuant to the terms of any employee stock option plan, stock ownership plan, dividend reinvestment plan or any other similar securities plan of the Company without the consent in effect as of the Representativesdate hereof and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding as of the date hereof.
(k) To use its reasonable efforts to cause the Shares to be accepted for clearance and settlement through the facilities of The Depositary Trust Company.
(l) To use its reasonable efforts to effect the listing of the Shares on the New York Stock Exchange.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants as followshereby agrees with each Underwriter:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish such information as may be required and otherwise to any Underwriter, upon request, at reasonably cooperate in qualifying the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Shares for offer and sale under the securities or “blue sky” sky laws of such states and other jurisdictions as the Representatives may designate and shall to maintain such qualifications so in effect as long as required by such laws for the offering and sale distribution of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), Shares; provided, however, that the Company shall not be required to qualify as a foreign corporation or other foreign entity or to file a consent to the service of process under the laws of, or subject itself to taxation as doing business in, any such state or other jurisdiction (except service of process with respect to the offering and sale of the Shares);
(b) to prepare the Prospectus in a form approved by the Underwriters and file annual reports such Prospectus with the Commission pursuant to, and within the time period required by, Rule 424(b) (without reliance on Rule 424(b)(8)) under the Securities Act and to deliver to the Underwriters copies of the Prospectus in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations;
(c) to furnish a copy of each proposed Issuer Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto;
(d) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable;
(e) to advise the Representatives promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or for additional information with respect thereto, (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, 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 proceedings for any of such purposes and, if the Commission or any other requirements deemed by government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;
(f) to advise the Underwriters promptly, confirming such advice in writing, of the happening of any event or development known to the Company within the time during which a Prospectus relating to the Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be unduly burdensome.delivered under the Securities Act Regulations which, in the judgment of the Company, (i) would require the making of any change in the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) would require amending or supplementing the Disclosure Package or the Prospectus so that the Disclosure Package or the Prospectus would not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iv) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with law, including in connection with the delivery of the Prospectus, to promptly prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, Disclosure Package or the Prospectus comply in all material respects with such requirements, to furnish to the Underwriters copies of the proposed amendment or supplement before filing any such amendment or supplement with the Commission, to file no such amendment or supplement to which the Representatives shall reasonably object in writing and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of such amendment or supplement;
(g) To pay all expensesif requested, fees and taxes (other than transfer taxes on resales to furnish promptly to each Representative a signed copy of the Notes by the respective Underwriters) in connection Registration Statement, as initially filed with the issuance Commission, and delivery of all amendments or supplements thereto (excluding all exhibits filed therewith or incorporated by reference therein) and such number of conformed copies of the Notes, except that foregoing as the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.Representatives may reasonably request;
(h) If to apply the Underwriters shall not take up net proceeds from the sale of the Shares by the Company in the manner set forth under the caption “Use of Proceeds” in the Registration Statement, the Disclosure Package and pay for the Notes due Prospectus;
(i) to make generally available to its security holders and to deliver to the failure Representatives (which may be satisfied if filed via EXXXX or any successor thereto) as soon as practicable, but in any event not later than the end of the Company to comply with any fiscal quarter first occurring after the first anniversary of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance effective date of the Registration Statement an earnings statement complying with the provisions of Section 9 or 10 hereof11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;
(j) to pay use its commercially best efforts to effect the fees listing of the Shares and disbursements maintain the listing of counsel the Common Stock on the NYSE;
(k) to promptly notify the Representatives if the Company ceases to be an EGC at any time prior to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier later of (i) the date which is after the Time completion of Purchase on which the distribution of the Notes ceases, as determined by Shares within the Representatives in their sole discretion, meaning of the Securities Act and (ii) completion of the date which 90-day restricted period referred to in Section 4(l) below;
(l) to use its best efforts to continue to meet the requirements for qualification and taxation as a REIT under the Code and to not take any action to revoke or otherwise terminate the Company’s REIT election, unless the Company’s board of directors determines in good faith that it is 30 no longer in the best interests of the Company to be so qualified; and
(m) for a period of 75 days after the Time date of Purchasethis Agreement, the Company agrees not to offerrefrain, selland to cause NETSTREIT GP, contract to sell or otherwise dispose of any Notes LLC, for itself and in its capacity as general partner of the Company or any substantially similar securities of Operating Partnership, to refrain and cause the Company Operating Partnership to refrain, without the prior written consent of the Representatives (which consent may be withheld or delayed at the discretion of the Representatives), from (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right or warrant for the sale of, lending or otherwise disposing of or transferring, directly or indirectly, any Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or other arrangement that transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued by the Company upon the exercise of an option or exchange or redemption of any other security outstanding on the date hereof and referred to in each of the Registration Statement, the Disclosure Package and the Prospectus, (iii) such issuances of options or grants of restricted stock or other equity-based awards under the Company’s stock option and incentive plans described in each of the Registration Statement, the Disclosure Package and the Prospectus and the issuance of shares issuable upon exercise of any such equity-based awards, (iv) the filing by the Company of registration statements on Form S-8 with respect to the Company’s stock option and incentive plans described in the Preliminary Prospectus, or (v) issuances not to exceed 25% in the aggregate of the total shares of Common Stock outstanding, calculated following the issuance and sale of Shares hereunder (assuming full conversion, exchange or exercise of all outstanding securities convertible into or exercisable or exchangeable for shares of Common Stock (including OP Units)), in connection with any acquisition, merger, consolidation or joint venture, including the filing of any registration statement under the Securities Act in connection therewith; provided that the acquirer of any such shares of Common Stock so issued enters into an agreement in the form of Exhibit A hereto with respect to such shares of Common Stock for the remainder of the 75-day restricted period or (vi) the transfer of shares of the Company’s stock pursuant to Article VII of the Company’s charter.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a1) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b2) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c3) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d4) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e5) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f6) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g7) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) 8) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i9) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(10) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a1) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b2) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.. #2853977v7
(c3) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d4) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e5) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f6) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g7) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) 8) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be #2853977v7 terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i9) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(10) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Mxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 _____ in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000______, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) To timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 0000 (xxx 0000 Xxx) in connection with the sale of the Notes.
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a1) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.. #3265683v5
(b2) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesDebentures) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c3) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Debentures and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d4) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes Debentures may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e5) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f6) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes Debentures within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, #3265683v5 reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g7) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) 8) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i9) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes Debentures ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offerit will not, sell, contract offer to sell sell, grant any option for the sale of, or otherwise dispose of any Notes of Debentures, any security convertible into, exchangeable into or exercisable for the Company Debentures or any debt securities substantially similar securities of to the Company Debentures (except for the Debentures issued pursuant to this Agreement), without the prior written consent of the Representatives. This agreement does not apply to issuances of (i) commercial paper or other debt securities with scheduled maturities of less than one year or (ii) any Senior Indebtedness (as defined in the Supplemental Indenture).
(10) If at any time when the Debentures remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Debentures, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives #3265683v5 of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Debentures 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a1) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b2) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c3) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities #2995025v4 other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d4) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e5) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f6) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g7) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) 8) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions #2995025v4 specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i9) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(10) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration considera- tion of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesDebentures) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially in the form filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Debentures and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Debentures may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the Underwriters, only in the xx xxx events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Dewey Ballantine, counsel to the UnderwritersUnderwritxxx, andxxx, if the xx xxx Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes Debentures ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes junior subordinated deferrable interest debentures of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.]
(j) The Company will use its best efforts to list, subject to notice of issuance, the Debentures on the New York Stock Exchange.]
(k) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the Debentures.
Appears in 1 contract
Certain Covenants of the Company. In further consideration considera- tion of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesDebentures) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially in the form filed with the Commission and of all amendments thereto (exclusive of exhibits), ) other than amendments relating solely to securities other than the Notes Debentures and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be are furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Debentures may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the Underwriters, only in the xx xxx events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Dewey Ballantine, counsel to the UnderwritersUnderwritxxx, andxxx, if the xx xxx Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes Debentures ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes junior subordinated deferrable interest debentures of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.]
(j) The Company will use its best efforts to list, subject to notice of issuance, the Debentures on the New York Stock Exchange.]
(k) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the Debentures.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During , such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceasesCompany, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell sell, grant any option for the sale of or otherwise dispose of any Notes Securities, any security convertible into, exchangeable into or exercisable for the Securities or any debt securities substantially similar to the Securities (except for the Securities) for a period from the date hereof and continuing for and including a period of 30 days; provided, however, that this covenant shall not apply to issuances of (i) commercial paper or other debt securities with scheduled maturities of less than one year or (ii) any Senior Indebtedness (as defined in the Time of Sale Prospectus).
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Mxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(w) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(w) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(x) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(ai) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(bj) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such #2803294v3 4 Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(ck) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(dl) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(em) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fn) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(go) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except #2803294v3 5 that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(hp) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(iq) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants as followsagrees:
(a) As soon as practicablepossible after the execution and delivery of this Agreement to file, and in any event within the time prescribed by Rule 424 under the Actor transmit for filing, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 its rule 424 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.;
(b) To deliver file no amendment or supplement to the Underwriters, without charge, as soon as practicable Registration Statement or Prospectus (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are other than a required by law to deliver a prospectus (or required to deliver but for Rule 172 filing under the Exchange Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements subsequent to the Prospectus complying with Section 10(a)(3) execution of this Agreement and prior to the Act.time of purchase to which you object in writing;
(c) To furnish such proper information as may be required and otherwise to cooperate in qualifying the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) Shares for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives you may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, designate; provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(d) To the extent not previously furnished to the Placement Agent, to furnish to the Placement Agent one signed copy of the Registration Statement, as initially filed with the Commission, of all amendments thereto, and of all documents incorporated by reference therein (including unsigned copies of all exhibits filed therewith, other than exhibits which have previously been furnished to you), one signed copy of each consent and certificate of independent accountants and of each other person who by his profession gives authority to statements made by him and who is named in the Registration Statement as having prepared, certified or reviewed any part thereof;
(e) To deliver to file the Placement Agent from time to time, without charge, as many copies of the Prospectus in final form and any documents incorporated by reference therein at or after the date thereof (or as amended or supplemented, if the Company shall have made any amendment or supplement after the 2 As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. effective date of the Registration Statement) as the Placement Agent may reasonably request for the purposes contemplated by the Act;
(f) To advise the Placement Agent promptly (confirming such advice in writing) of any official request made by the Commission for amendments to the Registration Statement or Prospectus or for additional information with respect thereto, or of official notice of institution of proceedings for or the entry of, a stop order suspending the effectiveness of the Registration Statement and, if such order should be entered by the Commission, to make every reasonable effort to obtain the lifting or removal thereof as soon as possible, or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or of the initiation or threatening of any proceeding for any such purpose;
(g) To apply the net proceeds from the sale of the Shares in the manner set forth in the Prospectus;
(h) To furnish to the Placement Agent during a period of five years from the time of purchase (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year and (ii) from time to time, copies of any reports or other communications which it shall file with the Commission or any governmental agency substituted therefor under the Exchange Act or sent to comply with its public stockholders, or holders of the Shares;
(i) To advise you of the happening of any event known to the Company within the time during which a prospectus relating to the Shares is required to be delivered under the Act which, in the judgment of the Company, would require the making of any change in the Prospectus or any amended or supplemented Prospectus or in the information incorporated by reference therein so that as thereafter delivered to purchasers such Prospectus will not include an 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 under which they were made, not misleading, and on request to prepare and furnish to you, such amendments or supplements (including appropriate flings under the Exchange Act) to the Prospectus as may be necessary to reflect any such change, provided that the Company shall be so obligated only so long as a prospectus relating to the Shares is required to be delivered under the Act;
(j) As soon as practicable, to make generally available to its security holders an earnings statement (as contemplated by Rule 158 under the Act) covering a period of twelve months after the effective date of the Registration Statement;
(k) to pay the reasonable fees and expenses of counsel for the Placement Agent and other requirements deemed out-of-pocket costs of the Placement Agent; all such amounts to be payable by the Company to be unduly burdensome.whether or not the Shares are issued and sold by the Company and purchased by the Investors;
(gl) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriterstaxes) in connection with (i) the issuance preparation and filing of the Registration Statement, each Preliminary Prospectus and the Prospectus, any documents incorporated by reference therein at or after the date thereof and any amendments or supplements thereto, and the printing or reproduction and furnishing of copies of each to the Placement Agent and the Investors, (ii) the issue, sale and delivery of the NotesShares and the listing of the Shares on the NYSE, except that (iii) the Company shall be required to pay printing or reproduction of this Agreement and the fees opinions and disbursements (other than disbursements letters referred to in paragraph Section 4(a) hereof, (fiv) the qualification of the Shares for sale under state laws as aforesaid, and all filing fees, and (v) the performance of the Company's other obligations hereunder; all such amounts to be payable by the Company whether or not the Shares are issued and sold by the Company and purchased by the Investors;
(m) To furnish to you as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if any, of the Company which have been read by the Company's independent public accountant as stated in their letter to be furnished pursuant to Section 4(a) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Samples: Placement Agent Agreement (New Century Energies Inc)
Certain Covenants of the Company. In further consideration consider- ation of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file any Prospectus Supplement relating to the Prospectus [Debt Securities] with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to either of the Registration Statement, Pricing Prospectus Statements or the Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use either of the Pricing Prospectus or the Prospectus Registration Statements or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement Statements as initially filed with the Commission and of all amendments thereto (exclusive of exhibits)thereto, other than amendments relating solely to securities other than the Notes [Debt Securities] (exclusive of exhibits), and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished are fur- nished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes [Debt Securities] may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes [Debt Securities] for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes [Debt Securities] by the respective Underwriters) in connection with the issuance and delivery of the Notes[Debt Securities], except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the UnderwritersUndxxxxxxxxx, only xxxx in the events provided in paragraph para- graph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes [Debt Securities] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements of Dewey Ballantine, counsel to the UnderwritersUndxxxxxxxxx, andxxx, if the Underwriters shall not take up and pay for the Notes [Debt Securities] due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the [Debt Securities].
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes [Debt Securities] ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes [Debt Securities] of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.]
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Underwritten Securities as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Underwritten Securities in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the Act1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Underwritten Securities; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such Underwritten Securities and prior to the Time of Delivery for such Underwritten Securities to which the Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Underwritten Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Comission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus (or Prospectus in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or for additional information with respect thereto or sale of such Underwritten Securities; to advise the Representatives, promptly after it receives notice thereof, of the entry of an order suspending the effectiveness of time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities, including, in the Pricing Prospectus case of Convertible Securities, the shares of stock issuable upon conversion of the Convertible Securities, 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 1933 Act, of the suspension of the qualification of such Underwritten Securities or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings for that purpose andsuch stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Underwritten Securities by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law Rule 430B(h) under the 1933 Act, to deliver prepare a form of prospectus, to give the Representatives notice thereof and to file such form of prospectus (or pursuant to Rule 424(b) under the Act not later than may be required to deliver but for by Rule 172 424(b) under the Act), as many copies ; and to make no further amendment or supplement to such form of the Prospectus (as supplemented or amended if the Company prospectus which shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as reasonably be disapproved by the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Underwritten Securities, including in the case of Convertible Securities, the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Dislcosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act, the 1934 Act or the 1939 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 under the Act158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best efforts to qualify effect and maintain the Notes for offer and sale under the securities listing of any shares of Common Stock or “blue sky” laws Preferred Stock issuable upon conversion of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, any Convertible Securities or to reimburse the extent requested by the applicable Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), providedany Convertible Securities, howeverif applicable, that on the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensomeNew York Stock Exchange.
(g) To pay all expensesthe extent provided in the Terms Agreement, fees the Company will not, between the date of the applicable Terms Agreement and taxes a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than transfer taxes on resales of the Notes by the respective Underwriters) Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Convertible Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), or if such Terms Agreement relates to Convertible Securities that are convertible into Preferred Stock, any Preferred Stock or any security convertible into Preferred Stock (except for Preferred Stock issued pursuant to employee benefit plans, dividend reinvestment plans, or employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in connection with the issuance and delivery of the Noteseach case, except that the Company shall as may otherwise be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only provided in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventapplicable Terms Agreement.
(h) If applicable, the Underwriters shall not take up Company will reserve and pay keep available at all times, free of preemptive or other similar rights, shares of Common Stock or Preferred Stock, as the case may be, for the Notes due to the failure purpose of enabling the Company to comply with satisfy any obligation to issue such shares upon conversion of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this AgreementConvertible Securities.
(i) During the For a period from the date hereof and continuing to and including the earlier of (i) the date which is five years after the applicable Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of PurchaseDelivery, the Company agrees not will furnish to offeryou and to each Underwriter that so requests copies of all annual reports, sellquarterly reports and current reports filed with the Commission on Forms 10-K, contract 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to sell the Company’s business or otherwise dispose of any Notes finances as shall be furnished by the Company to its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Company Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or any substantially similar securities 15 of the Company without 1934 Act within the consent of time periods required by the Representatives1934 Act and the 1934 Act Regulations.
(k) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors and (vi) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell or otherwise dispose issue debt securities substantially similar to the Securities for a period from the date hereof until the Time of Purchase.
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 Notes security of the Company to facilitate the sale or any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(u) To take all reasonable action necessary to enable S&P, Mxxxx’x and Fxxxx to provide their respective credit ratings of the Securities.
(v) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(i) Within 10 days after the Time of Purchase, to deliver the Supplemental Indenture in recordable form to the appropriate real estate recording office in all jurisdictions specified in the Supplemental Indenture for recording and deliver to the office of the Secretary of State of the State of Michigan a UCC-1 financing statement relating to the Supplemental Indenture for filing in such office, and (ii) within 25 days after the Time of Purchase, to deliver to counsel to the Underwriters a certificate signed by an officer of the Company certifying that the actions required by the foregoing clause (i) have been taken. The Company shall further provide counsel to the Underwriters, as soon as it is available, a copy of the related opinion of counsel contemplated by Section 7.11(i) of the Indenture. To the extent not covered in the opinion described in the previous sentence, the Company shall also provide counsel to the Underwriters, concurrently with the furnishing of such opinion, a list of the recording information for all such filings.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 1 contract
Certain Covenants of the Company. In further consideration consider- ation of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding exceed- ing nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially in the form filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution of one to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances circum- stances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished are fur- nished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes Debentures may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings earning statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Debentures for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Debentures by the respective Underwriters) in connection with the issuance and delivery of the NotesDebentures, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of Dewey Ballantine, counsel to the Underwriters, only in the xx xxx events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 84, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 7 or 10 8 hereof, to pay the fees and disbursements dis- bursements of Dewey Ballantine, counsel to the UnderwritersUnderwritxxx, andxxx, if the xx xxx Underwriters shall not take up and pay for the Notes Debentures due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection connec- tion with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes Debentures ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes junior subordinated deferrable interest debentures of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
(j) The Company will use its best efforts to list, subject to notice of issuance, the Debentures on the New York Stock Exchange.
(k) The Company will timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935 in connection with the sale of the Debentures.
Appears in 1 contract
Samples: Underwriting Agreement (Columbus Southern Power Co /Oh/)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Underwriters and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Underwriters may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any such Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Underwriters a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other UnderwritersNotes.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesUnderwriters) to whom principal amounts of the Notes may have been sold by the Representatives Underwriters for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Underwriters may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Underwriters in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesUnderwriters.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the NotesSecurities) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes Securities and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes Securities may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes Securities within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes Securities by the respective Underwriters, but including all amounts relating to (i) the Company’s costs and expenses for travel, lodging and incidental expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities; (ii) the listing of the Securities on the New York Stock Exchange; (iii) the preparation of the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement (and any amendments or supplements thereto); (iv) the sale and delivery of the Securities; (v) the reasonable fees and disbursements of counsel and accountants for the Company, the Trustee and any paying agent, the Purchase Contract Agent and the Collateral Agent, Securities Intermediary and Custodial Agent and the Remarketing Agent; and (vi) the printing and delivery of the Preliminary Prospectus Supplement, the Prospectus Supplement and any Permitted Free Writing Prospectus) in connection with the issuance sale and delivery of the NotesSecurities, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (fg) of this Section 4) of counsel to the Underwriters, Underwriters only in the events provided in paragraph (hi) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000100,000, incurred in connection with the financing contemplated by this Agreement.
(i) During The Company will not, without the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution prior written consent of the Notes ceasesRepresentatives, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell sell, pledge, or otherwise dispose of of, (or enter into any Notes transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any substantially similar securities person in privity with the Company or any affiliate of the Company) directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Rule 16a-1 under the Securities Exchange Act of 1934 (1934 Act), any Securities, Purchase Contracts, shares of Common Stock or other capital stock of the Company or any securities convertible into, or exercisable, or exchangeable for, Securities, Purchase Contracts, shares of Common Stock or other capital stock of the Company other than as provided in this Agreement; or publicly announce an intention to effect any such transaction, for a period of 60 days after the date of this Agreement, provided, however, that the Company may, without the prior written consent of the Representatives, issue and sell Common Stock pursuant to the terms of any employee stock option plan, stock ownership plan, dividend reinvestment plan, long-term incentive plan, or any other similar plan of the Company in effect as of the date hereof and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding as of the date hereof.
(j) To use its reasonable efforts to cause the Securities to be accepted for clearance and settlement through the facilities of The Depositary Trust Company.
(k) To use its reasonable efforts to effect the listing of the Securities on the New York Stock Exchange.
(l) If at any time when the Securities remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Securities, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (American Electric Power Co Inc)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many electronic copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at electronic copies of the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the ActCommission; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto or of the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an a stop order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act)prospectus, if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “"blue sky” " laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 87, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 8 or 9 or 10 hereof, to pay the fees and disbursements of Dxxxx Xxxxxxxxxx LLP, counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) To timely file any certificate required by Rule 52 under the Public Utility Holding Company Act of 1935, as amended (1935 Act) in connection with the sale of the Notes.
(j) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements The Company agrees with each of the Underwriters herein contained, the Company covenants as followsof any Designated Securities:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish such information as may be required and otherwise to cooperate in qualifying the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) Securities for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer offering and sale under the securities or “blue sky” Blue Sky laws of such jurisdictions states as the Representatives may designate and shall to maintain such qualifications so in effect as long as required for the offering and sale distribution of the Notes within six months after the date hereof and itself to paySecurities, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, provided that the Company shall not be required to qualify as a foreign corporation or to file a consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Securities) or to register as a dealer in securities or to become subject to taxation in any such state; and to promptly advise the Representatives of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(b) To furnish to the Underwriters1 conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and sufficient conformed copies of the foregoing (other than exhibits) for distribution of a copy to each of the other Underwriters, and thereafter from time to time to furnish to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act.
(c) During the period when a prospectus relating to the Securities is required to be delivered, to advise the Underwriters promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to make every reasonable effort at all times to obtain the lifting or removal of such order as soon as possible. One copy for each Representative and one copy for counsel for the Underwriters.
(d) During the period when a prospectus relating to the Securities is required to be delivered, to advise the Underwriters promptly of any proposal to amend or supplement the Registration Statement or Prospectus including by filing any documents that would be incorporated therein by reference and to file annual no such amendment or supplement to which the Underwriters shall reasonably object in writing, and to advise the Underwriters promptly and (if requested by the Underwriters) to confirm such advice in writing (i) when any post effective amendment thereto becomes effective, (ii) when any document that should be incorporated by reference in the Registration Statement is filed with the Commission and (iii) if Rule 430A under the 1933 Act is used, when the Prospectus of any amendment or supplement thereto is filed with the Commission pursuant to Rule 424(b) under the 1933 Act (which the Company agrees to file in a timely manner under such Rules).
(e) To advise the Underwriters promptly of the happening of any event known to the Company within the time during which a Prospectus relating to the Securities is required to be delivered under the 1933 Act which would require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference, so that the Prospectus would not 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 are made, not misleading, and, during such time, to prepare and file with the Commission and furnish, at the Company's expense (if such time shall be prior to the date which is nine months after the date hereof and if any Underwriter shall own any Securities which it has purchased from the Company with the intention of reselling them), to the Underwriters promptly such amendments or supplements to such Prospectus as the Underwriters may reasonably request.
(f) To file promptly all reports or information required to be filed by the Company with the Commission in order to comply with any other requirements deemed by the Company 1934 Act subsequent to be unduly burdensomethe date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities.
(g) To pay all expensesIf necessary or appropriate, fees and taxes (other than transfer taxes on resales of to file a registration statement pursuant to Rule 462(b) under the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event1933 Act.
(h) If To furnish the Representatives and, upon request, to each of the other Underwriters for a period of two years from the date of this Agreement (unless otherwise publicly available on the Commission's XXXXX website or the Company's website) (i) copies of any reports or other communications which the Company shall not take up send to its stockholders or shall from time to time publish or publicly disseminate, (ii) copies of all annual, quarterly and pay for current reports filed with the Notes due to Commission on Forms 20-F and 6-K, or such other similar form as may be designated by the failure Commission, (iii) copies of documents or reports filed with any securities exchange on which any class of securities of the Company is listed, and (iv) such other information as the Underwriters may reasonably request regarding the Company or its subsidiaries, in each case, as soon as such communications, documents or information becomes available.
(i) To prepare the Prospectus in relation to comply with any the applicable Designated Securities and file such Prospectus pursuant to Rule 424(b) under the 1933 Act not later than the time required by Rule 424(b) following the execution and delivery of the conditions specified in Section 3 hereofPricing Agreement relating to the applicable Designated Securities.
(j) To make generally available to its security holders, orand to deliver to the Underwriters, if this Agreement shall be terminated in accordance with an earnings statement of the Company (which will satisfy the provisions of Section 9 or 10 hereof11(a) of the 0000 Xxx) covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) of the 0000 Xxx) as soon as is reasonably practicable after the termination of such twelve-month period but not later than • , 200 .
(k) Prior to 30 days after the date of the Prospectus, to furnish to the Underwriters any proposed public announcement in respect of any matter that is material to the earnings, business, or operations of the Company and its subsidiaries, taken as a whole in each case in advance of the announcement where reasonably practicable.
(l) To apply the net proceeds from the sale of the Securities in the manner set forth under the caption "Use of Proceeds" in the Prospectus.
(m) To pay the all costs, expenses, fees (other than fees and disbursements of counsel to for the Underwriters, Underwriters except as set forth in Section 4 hereof) and, if as regards the Underwriters shall matters in (ii) below but not take up and pay otherwise, taxes (as defined below for the Notes due to the failure purposes of the Company to comply with any of the conditions specified in this Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred 3(m)) payable in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution preparation and filing of the Notes ceasesRegistration Statement, as determined by each Preliminary Prospectus, the Representatives in their sole discretionProspectus, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Underwriters and to dealers (including costs of mailing and shipment), (ii) the date which is 30 days after preparation, issuance, execution, authentication and delivery of the Time Securities, (iii) the producing, word processing and/or printing of Purchasethis Agreement, the Company agrees not Pricing Agreement and any closing documents (including compilations thereof), the Indentures, and the reproduction and/or printing and furnishing of copies of each thereof to offerthe Underwriters and (except closing documents) to dealers (including costs of mailing and shipment), sell, contract to sell or otherwise dispose (iv) the qualification of the Securities for offering and sale under state laws and the determination of their eligibility for investment under state law as aforesaid (including reasonable legal fees and filing fees and other disbursements of counsel for the Underwriters) and the printing and furnishing of copies of any Notes Blue Sky surveys or legal investment surveys to the Underwriters and to dealers, (v) any listing of the Company or Securities on any substantially similar securities exchange and any registration thereof under the 1934 Act, (vi) any fees payable to investment rating agencies with respect to the Securities, (vii) any filing for review of the Company without the consent public offering of the RepresentativesSecurities by the NASD and (viii) the performance of the Company's other obligations hereunder.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(j) The Company shall use the net proceeds received by it from the sale of the Notes pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds.”
Appears in 1 contract
Samples: Underwriting Agreement (Public Service Co of Oklahoma)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
. (b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
(j) If at any time when the Notes remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of 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 Notes, in a form satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other reasonable action necessary or appropriate to permit the public offering and sale of the Notes 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 such new registration statement or post-effective amendment, as the case may be.
Appears in 1 contract
Samples: Underwriting Agreement (AEP Transmission Company, LLC)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act433; as soon as the Company is advised thereof, to advise the Representatives Representative and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives Representative may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives Representative a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives Representative sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the RepresentativesRepresentative) to whom principal amounts of the Notes may have been sold by the Representatives Representative for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives Representative may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 $ in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs paragraph (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000______, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives Representative in their its sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the RepresentativesRepresentative.
Appears in 1 contract
Samples: Underwriting Agreement (Columbus Southern Power Co /Oh/)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Underwritten Securities as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Underwritten Securities in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the Act1933 Act not later than the Commission’s close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Underwritten Securities; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such Underwritten Securities and prior to the Time of Delivery for such Underwritten Securities to which the Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Underwritten Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus (or Prospectus in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or for additional information with respect thereto or sale of such Underwritten Securities; to advise the Representatives, promptly after it receives notice thereof, of the entry of an order suspending the effectiveness of time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities, including, in the Pricing Prospectus case of Convertible Securities, the shares of stock issuable upon conversion of the Convertible Securities, 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 1933 Act, of the suspension of the qualification of such Underwritten Securities or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings for that purpose andsuch stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Underwritten Securities by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law Rule 430B(h) under the 1933 Act, to deliver prepare a form of prospectus, to give the Representatives notice thereof and to file such form of prospectus (or pursuant to Rule 424(b) under the Act not later than may be required to deliver but for by Rule 172 424(b) under the Act), as many copies ; and to make no further amendment or supplement to such form of the Prospectus (as supplemented or amended if the Company prospectus which shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as reasonably be disapproved by the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Underwritten Securities, including in the case of Convertible Securities, the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Disclosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act, the 1934 Act or the 1939 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best efforts to effect and maintain the listing of any shares of Common Stock or Preferred Stock issuable upon conversion of any Convertible Securities or to the extent requested by the applicable Underwriters prior to the date hereof, any Convertible Securities, if applicable, on the New York Stock Exchange.
(g) To the extent provided in the Terms Agreement, the Company will not, between the date of the applicable Terms Agreement and a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Convertible Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), or if such Terms Agreement relates to Convertible Securities that are convertible into Preferred Stock, any Preferred Stock or any security convertible into Preferred Stock (except for Preferred Stock issued pursuant to employee benefit plans, dividend reinvestment plans, or employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in each case, as may otherwise be provided in the applicable Terms Agreement.
(h) If applicable, the Company will reserve and keep available at all times, free of preemptive or other similar rights, shares of Common Stock or Preferred Stock, as the case may be, for the purpose of enabling the Company to satisfy any obligation to issue such shares upon conversion of any Convertible Securities.
(i) For a period of five years after the applicable Time of Delivery, the Company will furnish to you and to each Underwriter that so requests copies of all annual reports, quarterly reports and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to the Company’s business or finances as shall be furnished by the Company to its shareholders generally; provided that the Company shall have no obligation to furnish any document that is publicly available via the Commission’s XXXXX and/or IDEA system.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
(fl) To use its best efforts The Company shall take all reasonable action necessary to qualify the Notes for offer enable Standard & Poor’s Ratings Services, a division of McGraw Hill, Inc. (“S&P”), and sale under the securities or Xxxxx’x Investors Service Inc. (“blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale Moody’s”) to provide their respective credit ratings of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) Securities in connection with the initial issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventthereof.
(h) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants with each Underwriter of Underwritten Securities as follows:
(a) As soon To prepare the Prospectus as practicable, amended and supplemented in any event within relation to the time prescribed applicable Underwritten Securities in a form approved by Rule 424 under the Act, Representatives and to file the such Prospectus with the Commission and make any other required filings pursuant to Rule 433 424(b) under the Act1933 Act not later than the Commission's close of business on the second business day following the execution and delivery of the Terms Agreement relating to the applicable Underwritten Securities; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of make no further amendment or any request made by the Commission for amendments supplement to the Registration Statement, the Basic Prospectus or the Prospectus, as then amended or supplemented, after the date of the Terms Agreement relating to such Underwritten Securities and prior to the Time of Delivery for such Underwritten Securities to which the Representatives reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Underwritten Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the 1933 Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Comission pursuant to Rule 433(d) under the 1933 Act; to file promptly all reports and any other information required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of the Pricing Prospectus and for so long as the delivery of a prospectus (or Prospectus in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required in connection with the offering or for additional information with respect thereto or sale of such Underwritten Securities; to advise the Representatives, promptly after it receives notice thereof, of the entry of an order suspending the effectiveness of time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission and to furnish the Representatives with copies thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities, including, in the Pricing Prospectus case of Convertible Securities, the shares of stock issuable upon conversion of the Convertible Securities, 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 1933 Act, of the suspension of the qualification of such Underwritten Securities or stock for offering or sale in any jurisdiction, of the initiation or 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; and, in the event of the initiation or threat issuance of any proceedings for that purpose andsuch stop order or of any such order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to such Underwritten Securities or stock or suspending any such qualification, if to use promptly its best efforts to obtain its withdrawal; and in the event of any such an order should issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be entered necessary to permit offers and sales of the Underwritten Securities by the Commission, Underwriters (references herein to make every reasonable effort to obtain the prompt lifting Registration Statement shall include any such amendment or removal thereofnew registration statement).
(b) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are If required by law Rule 430B(h) under the 1933 Act, to deliver prepare a form of prospectus, to give the Representatives notice thereof and to file such form of prospectus (or pursuant to Rule 424(b) under the Act not later than may be required to deliver but for by Rule 172 424(b) under the Act), as many copies ; and to make no further amendment or supplement to such form of the Prospectus (as supplemented or amended if the Company prospectus which shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as reasonably be disapproved by the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus promptly after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Actnotice thereof.
(c) To The Company will use its best efforts to furnish the Underwriters, prior to 5:00 P.M., New York City time, on the New York Business Day (as defined herein) next succeeding the date of this Agreement and from time to time, with written and electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in New York City in such quantities as the Representatives a copymay from time to time reasonably request, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to if the Representatives sufficient plain copies thereof (exclusive delivery of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act)0000 Xxx) is required at any time in connection with the offering or sale of the Underwritten Securities, including in the case of Convertible Securities, the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities and if at such time any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus Disclosure Package 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 in order to make the statements therein, in the light of the circumstances under which they were made when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the Pricing Prospectus or notice referred to in Rule 173(a) under the Prospectus 0000 Xxx) is delivered to a purchaserdelivered, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnishor, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives if for the accounts of the Underwriters and, upon request, to any other dealers making reason it shall be necessary during such request, copies of such amendments same period to amend or supplement the Pricing Prospectus Dislcosure Package or the Prospectus or supplements to file under the 1934 Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to comply with the 1933 Act, the 1934 Act or the 1939 Act or the respective rules thereunder, and upon their reasonable request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Prospectus Disclosure Package or the ProspectusProspectus which will correct such statement or omission or effect such compliance. For purposes of this Agreement, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.
(d) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate and to maintain such qualifications in effect for a period of not less than one year from the effective date of the Registration Statement; provided, that neither the Company nor any Subsidiary shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Underwritten Securities and the shares of Common Stock or Preferred Stock issuable upon conversion of the Convertible Securities, if any, have been qualified as above provided.
(e) As soon as practicable, the The Company will make generally available to its security holders and will deliver to the Underwriters Representatives an earnings statement or statement of the Company and its subsidiaries (which will satisfy the provisions of need not be audited) complying with Section 11(a) of the 1933 Act and the 1933 Act Regulations (including, at the option of the Company, Rule 158 under the Act158).
(f) To the extent provided in the applicable Terms Agreement, the Company will use its best efforts to qualify effect and maintain the Notes for offer and sale under the securities listing of any shares of Common Stock or “blue sky” laws Preferred Stock issuable upon conversion of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, any Convertible Securities or to reimburse the extent requested by the applicable Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), providedany Convertible Securities, howeverif applicable, that on the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensomeNew York Stock Exchange.
(g) To pay all expensesthe extent provided in the Terms Agreement, fees the Company will not, between the date of the applicable Terms Agreement and taxes a date agreed to by the Representatives and the Company in the Terms Agreement, without the Representatives’ prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company (other than transfer taxes on resales of the Notes by the respective Underwriters) Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Convertible Securities that are convertible into Common Stock, any Common Stock or any security convertible into Common Stock (except for Common Stock issued pursuant to employee benefit plans, dividend reinvestment plans, employee and director stock option plans, existing employment agreements or existing shareholder option plans), or if such Terms Agreement relates to Convertible Securities that are convertible into Preferred Stock, any Preferred Stock or any security convertible into Preferred Stock (except for Preferred Stock issued pursuant to employee benefit plans, dividend reinvestment plans, or employee and director stock option plans, existing employment agreements or existing shareholder option plans), except, in connection with the issuance and delivery of the Noteseach case, except that the Company shall as may otherwise be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only provided in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other eventapplicable Terms Agreement.
(h) If applicable, the Underwriters shall not take up Company will reserve and pay keep available at all times, free of preemptive or other similar rights, shares of Common Stock or Preferred Stock, as the case may be, for the Notes due to the failure purpose of enabling the Company to comply with satisfy any obligation to issue such shares upon conversion of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this AgreementConvertible Securities.
(i) During the For a period from the date hereof and continuing to and including the earlier of (i) the date which is five years after the applicable Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of PurchaseDelivery, the Company agrees not will furnish to offeryou and to each Underwriter that so requests copies of all annual reports, sellquarterly reports and current reports filed with the Commission on Forms 10-K, contract 10-Q and 8-K, as the case may be, or such other similar forms as may be designated by the Commission, and such other documents, reports and information relating to sell the Company's business or otherwise dispose of any Notes finances as shall be furnished by the Company to its shareholders generally.
(j) The Company, during the period when a prospectus is required to be delivered under the 1933 Act (or in lieu thereof, the notice referred to in Rule 173(a) under the 0000 Xxx) in connection with sales of the Company Underwritten Securities, will file all documents required to be filed with the Commission pursuant to Sections 13, 14 or any substantially similar securities 15 of the Company without 1934 Act within the consent of time periods required by the Representatives1934 Act and the 1934 Act Regulations.
(k) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with Rules 456(b) and 457(r) under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Royal Caribbean Cruises LTD)
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:
(a) a. As soon as practicable, and in any event within the time prescribed by Rule 424 under the Act, to file the Prospectus with the Commission and make any other required filings pursuant to Rule 433 under the Act; as soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of any request made by the Commission for amendments to the Registration Statement, Pricing Prospectus or Prospectus or for additional information with respect thereto or of the entry of an order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) b. To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented or amended if the Company shall have made any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) c. To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) d. For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) e. As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) f. To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(g) g. To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only in the events provided in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.
(h) h. If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) i. During the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceases, as determined by the Representatives in their sole discretion, and (ii) the date which is 30 days after the Time of Purchase, the Company agrees not to offer, sell, contract to sell or otherwise dispose of any Notes of the Company or any substantially similar securities of the Company without the consent of the Representatives.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants as follows:.
(a) As soon as practicableTo promptly transmit copies of the Preliminary Prospectus and the Prospectus, and in any event within amendments or supplements thereto, to the time prescribed by Commission for filing pursuant to Rule 424 under the Act.
(b) During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file the Prospectus promptly all documents required to be filed with the Commission and make any other pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material required filings to be filed by the Company with the Commission pursuant to Rule 433 433(d) under the Act; as and to promptly notify the Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c) To deliver to each of the Representatives a conformed copy of the Registration Statement and any amendments thereto (including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters, conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d) As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to the Registration Statement, Pricing Time of Sale Prospectus or Prospectus or for additional information with respect thereto thereto; (iii) the suspension of qualification or suspension of exemption from qualification of the Securities for offering or sale under blue sky or state securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of an a stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable effort to prevent the issuance of any such suspension or stop order and, if such an a suspension or stop order should be entered by the Commissionentered, to make use every reasonable effort to obtain the prompt lifting or removal thereofthereof at the earliest possible time).
(be) To deliver to the Underwriters, without charge, as soon as practicable (and in any event within 24 hours after the date hereof)practicable, and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements or amendments thereto), other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and and, in case any Underwriter is required to deliver a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date hereofof the Preliminary Prospectus or the Prospectus, as the case may be, to furnish to any Underwriterthe Representatives, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may be, complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(df) For such period of time (not exceeding nine months) after as the date hereof as they Underwriters are required by law or customary practice to deliver a prospectus in respect of the Securities (or required or, in lieu thereof, the notice referred to deliver but for in Rule 172 173(a) under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Time of Sale Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith or if it becomes necessary to prepare and furnish, at its own expense, to amend or supplement the Underwriters and to dealers (whose names and addresses will be furnished to Registration Statement or amend the Company by the Representatives) to whom principal amounts Time of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Sale Prospectus or the Prospectus to comply with law, including in connection with the use or supplements delivery of the Prospectus, to forthwith prepare and file with the Commission (subject to Section 4(m) hereof) an appropriate amendment or supplement to the Pricing Registration Statement, the Time of Sale Prospectus or the Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as practicable to avoid any disruption in use of the Prospectus.
(eg) As During the period when a prospectus relating to any of the Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after reasonable notice thereof.
(i) To make generally available to the Company’s security holders, as soon as practicable, an “earning statement” (which need not be audited by independent public accountants) covering a 12-month period commencing after the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement effective date of the Company Registration Statement and its subsidiaries which will ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(fj) To use its best efforts to qualify the Notes Securities for offer and sale under the securities or “blue sky” sky laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to paypay (or cause to be paid), or reimburse (or cause to reimburse be reimbursed) the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including the reasonable fees and disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior to the effective date hereof), ; provided, however, that the Company shall not be required to qualify to do business as a foreign corporation or to as a securities dealer, file a general consent to service of process or to process, file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(gk) To pay all expenses, fees and taxes (other than transfer taxes on resales of the Notes sales by the respective Underwriters) in connection with the issuance and delivery of the NotesSecurities, including, without limitation, (i) the fees and expenses of the Company’s counsel and independent accountants, (ii) the cost of preparing any certificates representing the Securities, (iii) the costs and charges of any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all expenses incurred by the Company in connection with any “road show” presentation to potential investors, (vi) all expenses and application fees related to the listing of the Securities on the NYSE and (vii) any costs and expenses associated with the reforming of any contracts for any sale of the Securities made by any Underwriter caused by a breach of the representations and warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the fees and disbursements (other than fees and disbursements referred to in paragraph (fSection 4(j) hereof) of this Section 4) of Pillsbury, counsel to the Underwriters, only in the events provided in paragraph (hSection 4(l) of this Section 4 and paragraphs (a) and (c) of Section 8hereof, the Underwriters hereby agreeing to pay such fees and disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(hl) If the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes Securities (i) due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and to reimburse the Underwriters for their other reasonable out-of-pocket expenses, in an aggregate amount expenses not exceeding to exceed a total of $10,000, incurred in connection with the financing contemplated by this Agreement.
(i) During , such amounts including all amounts incurred in connection with any roadshow, provided that such amounts are documented in writing to the period from the date hereof and continuing to and including the earlier of (i) the date which is after the Time of Purchase on which the distribution of the Notes ceasesCompany, as determined by the Representatives in their sole discretion, and or (ii) due to termination in accordance with the date which is 30 days after provisions of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m) Prior to the termination of the offering of the Securities, to not amend or supplement the Registration Statement, Time of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company agrees has furnished the Representatives and counsel to the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments of the Representatives, and not to make any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the Representatives.
(n) To furnish the Representatives with copies of all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering of the Securities.
(o) So long as may be required by law for distribution of the Securities by the Underwriters or by any dealers that participate in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act.
(p) Without the prior written consent of the Representatives, not to offer, sell, contract to sell sell, grant any option for the sale of or otherwise dispose of any Notes Securities, any security convertible into, exchangeable into or exercisable for the Securities or any debt securities substantially similar to the Securities (except for the Securities) for a period from the date hereof and continuing for and including a period of 30 days; provided, however, that this covenant shall not apply to issuances of (i) commercial paper or other debt securities with scheduled maturities of less than one year or (ii) any Senior Indebtedness (as defined in the Time of Sale Prospectus).
(q) To not take, directly or indirectly, any action designed to, or that has constituted 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 any substantially similar securities resale of the Securities.
(r) To cause the proceeds of the issuance and sale of the Securities to be applied for the purposes described in the Time of Sale Prospectus and the Prospectus.
(s) To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with all of its agreements set forth in the representation letter or letters of the Company without to DTC relating to the consent approval of the Securities by DTC for “book-entry” transfer.
(t) To use its reasonable best efforts to effect the listing of the Initial Securities on the NYSE no later than the 30th day following the Time of Purchase and to effect the listing of any Option Securities issued on any Date of Option Delivery on the NYSE no later than the 30th day following such Date of Option Delivery.
(u) To not voluntarily claim, and actively resist any attempts to claim, the benefit of any usury laws against the holders of any Securities.
(v) To take all reasonable action necessary to enable S&P, Xxxxx’x and Fitch to provide their respective credit ratings of the Securities.
(w) That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains the final terms of the Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(x) If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective upon filing.
(y) If, at any time when 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, to (i) promptly notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the The Company covenants as followsagrees:
(a) As soon as practicablepossible after the execution and delivery of this Agreement to file, and in any event within the time prescribed by Rule 424 under the Actor mail for filing, to file the Prospectus with the Commission and make any other required filings pursuant to its Rule 433 424 under the Act and, if and when required at any time after such execution and delivery, to file amendments to the applications the Company has previously filed with any state regulatory agencies having jurisdiction to govern the Company's issuance of its securities setting forth, among other things, the necessary informa- tion with respect to the price and the terms of the Shares and the terms of offering of the Shares;
(b) To file no amendment or supplement to the Registration Statement or Prospectus (other than a required filing under the Exchange Act) subsequent to the execution of this Agreement and prior to the time of purchase to which you object in writing;
(c) To furnish such proper information as may be required and otherwise to cooperate in qualifying the Shares for sale under the laws of such jurisdictions as you may designate and in determining their eligibility for investment under the laws of such jurisdictions; provided that the Company shall not be required to qualify as a for- eign corporation or to file a general consent to service of process in any jurisdiction;
(d) To the extent not previously furnished to you, to furnish to you two signed copies of the Registration Statement, as initially filed with the Commission, of all amendments thereto, and of all documents incorporated by reference therein (including all exhibits filed therewith, other than exhibits which have previously been furnished to you), two signed copies of each consent and certificate of independent accountants and of each other person who by his profession gives authority to statements made by him and who is named in the Registration Statement as having prepared, certi- fied or reviewed any part thereof, and to furnish to you sufficient unsigned copies of the foregoing (other than exhibits, including consents filed as exhibits, to the Registration Statement) for dis- tribution of a copy to you and to each of the other Underwriters;
(e) To deliver to the Underwriters without charge in New York City as soon as practicable after the execution and delivery of this Agreement and thereafter from time to time to furnish to the Underwriters, without charge, as many copies of the Prospectus in final form and any documents incorporated by reference therein at or after the date thereof (or as amended or supplemented, if the Company is advised thereof, to shall have made any amendment or sup- plement after the effective date of the Registra- tion Statement) as you or the respective Under- writers may reasonably request for the purposes contemplated by the Act;
(f) To advise the Representatives and confirm the you promptly (confirming such advice in writing writing) of any official request made by the Commission for amendments to the Registration Statement, Pricing Prospectus Statement or Prospectus or for additional information with respect thereto thereto, or of official notice of institution of proceedings for, or the entry of an of, a stop order suspending the effectiveness effective- ness of the Registration Statement or preventing or suspending the use of the Pricing Prospectus or the Prospectus or of the initiation or threat of any proceedings for that purpose and, if such an order should be entered by the Commission, to make every reasonable effort to obtain the prompt lifting or removal thereof.
(b) To deliver to the Underwriters, without charge, thereof as soon as practicable (and possible, or of the suspension of qualification of the Shares for offering or sale in any event within 24 hours after the date hereof), and from time to time thereafter during such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (jurisdiction or required to deliver but for Rule 172 under the Act), as many copies of the Prospectus (as supplemented initiation or amended if the Company shall have made threatening of any supplements or amendments thereto, other than supplements or amendments relating solely to securities other than the Notes) as the Representatives may reasonably request; and in case proceeding for any Underwriter is required to deliver a prospectus after the expiration of nine months after the date hereof, to furnish to any Underwriter, upon request, at the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of supplements to the Prospectus complying with Section 10(a)(3) of the Act.
(c) To furnish to the Representatives a copy, certified by the Secretary or an Assistant Secretary of the Company, of the Registration Statement as initially filed with the Commission and of all amendments thereto (exclusive of exhibits), other than amendments relating solely to securities other than the Notes and, upon request, to furnish to the Representatives sufficient plain copies thereof (exclusive of exhibits) for distribution to the other Underwriters.
(d) For such period of time (not exceeding nine months) after the date hereof as they are required by law to deliver a prospectus (or required to deliver but for Rule 172 under the Act), if any event shall have occurred as a result of which it is necessary to amend or supplement the Pricing Prospectus or the Prospectus in order to make the statements therein, in the light of the circumstances when the Pricing Prospectus or the Prospectus is delivered to a purchaser, not contain any untrue statement of a material fact or not omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, forthwith to prepare and furnish, at its own expense, to the Underwriters and to dealers (whose names and addresses will be furnished to the Company by the Representatives) to whom principal amounts of the Notes may have been sold by the Representatives for the accounts of the Underwriters and, upon request, to any other dealers making such request, copies of such amendments to the Pricing Prospectus or the Prospectus or supplements to the Pricing Prospectus or the Prospectus.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Underwriters an earnings statement or statement of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(f) To use its best efforts to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the Representatives may designate and shall maintain such qualifications so long as required for the offering and sale of the Notes within six months after the date hereof and itself to pay, or to reimburse the Underwriters and their counsel for, reasonable filing fees and expenses in connection therewith in an amount not exceeding $3,500 in the aggregate (including filing fees and expenses paid and incurred prior to the effective date hereof), provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.purpose;
(g) To pay all expenses, fees and taxes (other than transfer taxes on resales apply the net proceeds from the sale of the Notes by the respective Underwriters) in connection with the issuance and delivery of the Notes, except that the Company shall be required to pay the fees and disbursements (other than disbursements referred to in paragraph (f) of this Section 4) of counsel to the Underwriters, only Shares in the events provided manner set forth in paragraph (h) of this Section 4 and paragraphs (a) and (c) of Section 8, the Underwriters hereby agreeing to pay such fees and disbursements in any other event.Prospectus;
(h) If To furnish to you during a period of five years from the Underwriters time of purchase (i) as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year, (ii) from time to time, copies of any reports or other communications which it shall not take up and pay for file with the Notes due Commission or any governmental agency substituted therefor under the Exchange Act or sent to the failure its public stockholders, or holders of the Company Shares, and (iii) such other information as you may from time to comply with any time reasonably request regarding the financial condition and operations of the conditions specified in Section 3 hereof, or, if this Agreement shall be terminated in accordance with the provisions of Section 9 or 10 hereof, to pay the fees and disbursements of counsel to the Underwriters, and, if the Underwriters shall not take up and pay for the Notes due to the failure of the Company to comply with any of the conditions specified in Section 3 hereof, to reimburse the Underwriters for their reasonable out-of-pocket expenses, in an aggregate amount not exceeding a total of $10,000, incurred in connection with the financing contemplated by this Agreement.Company;
(i) During the period from the date hereof and continuing To furnish to and including the earlier any other Underwriter cop- ies of (i) the date which is after the Time of Purchase on which the distribution such of the Notes ceasesfinancial statements, as determined by reports or other information referred to in the Representatives in their sole discretion, foregoing subparagraphs (h)(i) and (ii) as such Underwriter may, from time to time during the date which is 30 days after period you are entitled to receive them, request;
(j) To advise the Time Underwriters of Purchase, the hap- pening of any event known to the Company agrees not within the time during which a prospectus relating to offerthe Shares is required to be delivered under the Act which, sellin the judgment of the Company, contract to sell or otherwise dispose would require the making of any Notes of change in the Company Prospectus or any substantially similar securities of amended or supplemented Prospectus or in the Company without the consent of the Representatives.information incorporated by reference therein so that as thereafter delivered to purchasers such Prospectus will not include an untrue statement of
Appears in 1 contract
